Appeal No. 2006-0533
Application 09/838,420
the use of the abstract concept of true and false. As recited,
claim 11 appears to plainly state that the claimed “computer-
usable medium” is itself comprised of the claimed “computer
readable instructions” per se. Conversely, this claim does not
require or recite a positive statement of a computer readable
medium in the conventional sense in the art within which is
embodied computer readable instructions. That is, there is no
embodiment of computer readable instructions on a tangible
computer readable medium.
The examiner’s view at page 6 as to the rejection of
claim 11 under 35 U.S.C. § 101 that the claimed “computer usable
medium” encompass an intangible embodiment such as carrier waves
or transmission media would appear, at first blush, to be
somewhat preposterous. On the other hand, appellants’ responsive
arguments as to the second rejection of this claim under the
second paragraph of 35 U.S.C. § 112 make clear that appellants
intend these to be encompassed by the term. This is simply seen
because the use of the term “computer-usable medium” in claim 11
does not positively state that any kind of medium is actually
used.
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