Appeal No. 2002-1554
Application 08/003,996
sequences containing more than one of said binary
spreading-code sequences; and
b) simultaneously transmitting selected subsets of
said set of binary spreading-code sequences from
said transmitting node to said receiving node.
No prior art is relied on in the rejection.
Claims 2-51 stand rejected under 35 U.S.C. § 101 as being
directed to nonstatutory subject matter.
We refer to the examiner's answer (Paper No. 32) (pages
referred to as "EA__") for a statement of the examiner's position
and to the appeal brief (Paper No. 13) for a statement of
appellant's position.
OPINION
The examiner concludes that the claimed "electromagnetic
signals" are nonstatutory subject matter because such signals are
"transitory and ephemeral." For example, the examiner states
that "[s]ignals are neither a manufacture nor a composition of
matter as appellant alleges but a transitory emanation of a
previously patented apparatus and method" (EA3). The examiner
further states (EA4):
This attempt to patent signals in free space is akin to
patenting an audio or television program or any other signal
in free space after transmission but before reception.
There is no reason why these transitory and ephemeral
emanations should be included in the four statutory classes
of invention.
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