Appeal No. 2001-1911
Application No. 08/825,492
etc., is noted. However, appellants’ invitation for us to expand
upon the stated policy in this section of the MPEP is
inappropriate since we do not set policy. We remain unpersuaded
therefore as well of appellants’ arguments at page 2 of the reply
brief that the ATM cell of claim 21 is more than just a mere data
structure. The claim itself does not recite anything more than a
data structure even though we recognize that it is capable of
being “used” to convey information in certain mediums, none of
which has been recited as structural elements or methods in claim
21 itself. We disagree with appellants’ view that the ATM cell
of claim 21 is a physical thing and that it is an article.
Therefore, we sustain the rejection of independent claim 21 and
dependent claims 22 and 26.1
Finally, we also sustain the rejection of claims 1 through
3, 5 through 8, 14 through 16, 18 through 20, 24 and 25 under
35 U.S.C. § 102 for the reasons stated by the examiner in the
final rejection as amplified in the answer. Significantly, page
1 We note in passing that the subject matter of dependent claim 22
should apparently depend from dependent claim 26 rather than independent claim
21, since there is no antecedent basis in claim 21 for the claimed information
indicative of the number of partially filled ATM cells recited in claim 22,
but such is defined in dependent claim 26.
8
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