Appeal No. 2006-0002
Application No. 09/935,531
1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997).
We also agree with the Examiner, for all of the articulated
reasons (Answer, page 3), that the shaded rectangles in the
display resulting from the combination of Smith and Thong provide
an indication of channel activity as claimed. As alluded to by
the Examiner, at the very least the spectrum analyzer of Smith,
which compares certain bands of frequencies, i.e., data channels,
to indicate changes in a signal over a period of time, would
provide, in our view, a clear disclosure of channel activity as
claimed.
Further, while we do not necessarily agree with the
Examiner’s attempt (Answer, page 8) to establish correspondence
between Smith’s displayed “duty cycle” and the claimed “one’s
density” data representation, we find that the “one’s density”
limitation is merely a description of the data content
represented by the displayed shaded rectangle. As such, we
consider such data content representation to be nonfunctional
descriptive material which is entitled to no patentable weight
since nonfunctional descriptive material cannot distinguish an
invention from the prior art in terms of patentability. In re
Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004).
Cf. In re Gulack, 703 F.2d 1381, 1385, 217 USPQ 401, 404 (Fed.
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