Appeal No. 2006-2228
Application No. 10/231,678
claim 35 to include a time varying electromagnetic signal instead of just an
abstract quantity, such as a data format.
The “computer-readable signal bearing media” of claim 35 is considered
to be nonstatutory subject matter because a "carrier wave" or a "propagated
signal" does not fall within one of the four statutory categories of subject matter
under 35 U.S.C. § 101.
The categories of statutory subject matter are "process, machine,
manufacture, or composition of matter." 35 U.S.C. § 101. "[N]o patent is
available for a discovery, however useful, novel, and nonobvious, unless it falls
within one of the express categories of patentable subject matter of 35 U.S.C. §
101." Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 483, 181 USPQ 673,
679 (1974).
A "process" is a series of acts and, since claims 35, 37, and 38 do not
recite acts, it is not a process. Compare the method of sharing data in claims 20-
22, which are not rejected.
The three product classes of machine, manufacture, and composition of
matter have traditionally required physical structure or substance. "The term
machine includes every mechanical device or combination of mechanical
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