Appeal No. 2002-1554
Application 08/003,996
The examiner still further states (EA4):
Any signal in free space is transitory, ephemeral and not
useful without transmission or reception. It is a short
lived intermediate having no utility in and of itself
without the process and apparatus of transmission or
reception. The examiner respectfully suggests that they are
the later [sic, latter] and hence not statutory.
The examiner made exactly the same arguments in the previous
appeal. However, contrary to the examiner's statement that
"[T]he Board of Appeals has previously agreed with the Examiner
in the affirmance dated 3/24/99" (EA4), while our previous
decision affirmed the examiner's rejection under § 101, it should
be clear from reading it that it did not rely on the analysis
that signals are not within the four statutory categories of
patentable subject matter because they are "transitory and
ephemeral." The examiner has made no attempt to incorporate our
reasoning into his statement of the rejection. Accordingly, this
decision is limited to consideration of the examiner's reasons.
Appellant refers to a paper by Stephen G. Kunin, Deputy
Assistant Commission for Patent Policy & Projects, Computer
Program Product Claims, presented at a "Partners in Patents V
Conference" sometime between October 22, 1996, and May 18, 2000,
(after the date of our previous decision), which indicates that
the transitory nature of a signal does not make it nonstatutory
subject matter, referring by example to U.S. Patent 3,156,523 to
element 95 and citing In re Breslow, 616 F.2d 516, 205 USPQ 221
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