Appeal No. 2006-1785 Page 4
Application No. 10/768,827
have, likewise, reviewed and taken into consideration, in reaching our
decision, the appellants’ arguments set forth in the briefs along with the
examiner’s rationale in support of the rejections and arguments in rebuttal
set forth in the examiner’s answer. Only those arguments actually made by
appellants have been considered in this decision
It is our view, after consideration of the record before us, that the
evidence relied upon supports the examiner’s finding of anticipation with
respect to claims 1, 13, 14, 15 and 24-26. We also find that the level of skill
in the particular art would have suggested to one of ordinary skill in the art
the obviousness of the invention as set forth in claims 1-13, 15-24 and 27-
34. However, we will not sustain the examiner’s finding of non-statutory
subject matter with respect to claims 15-25. Accordingly, we affirm.
I. We consider first the examiner’s rejection of claims 15-25 under 35
U.S.C. §101. Appellants argue that claims 15-25 are improperly rejected
under 35 U.S.C. §101 [brief, pages 6-9]. In response, the examiner
essentially argues that claim 15 is directed to a data structure per se and is
therefore non statutory. See In re Warmerdam 33 F.3d 1354, 1362, 31
USPQ2d 1754, 1760 (Fed. Cir. 1994).
We note that claim 15 recites “an article of manufacture comprising a
computer program product embodied in a machine readable medium … .”
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