Appeal No. 2006-2228
Application No. 10/231,678
transferred through wireless communications be protected in the same manner
that software on a disk is protected. Appellant also responds that the
examiner’s standard of being reproducible or useful is without any support in
the law. Appellant reiterates the arguments made in the main brief and notes
that there is no legislative history that supports the distinctions being made by
the examiner [reply brief].
We will sustain the examiner’s rejection of the claims on appeal. The
issue, quite simply, is whether a claimed program product that is broad enough
to include a carrier wave is statutory subject matter. We acknowledge that we
are not aware of any case law that has specifically decided this question either
way. It could be argued that a carrier wave is not statutory subject matter
because it is does not fall within any of the four categories of statutory subject
matter. Even if a carrier wave could be considered to be an article of
manufacture, however, we find that such a carrier wave does not operate as the
claimed program product. Independent claim 35 recites a common session
manager and an authorization mechanism that interact with a computer to
perform specific functions and that are stored on computer-readable signal
bearing media. It is our view that the functions to be performed by the
computer of claim 35 cannot be performed while the information relating to the
common session manager and authorization mechanism are within a carrier
wave. Specifically, information sent by carrier wave is transmitted by
modulating the carrier wave with the information. This information must be
received and
-5-
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007