Appeal No. 2006-3121
Application No. 10/165,083
program product for managing source information where the product comprises
instructions that interact with the computer to perform specific functions. It is our
view that the computer cannot perform the claimed functions while the
instructions are within a carrier wave or a signal.
Specifically, information sent by carrier waves or signals is transmitted by
modulating the carrier wave or signal with the information. This information must
be received and demodulated before the information is available for use. Thus,
the information, while on the carrier wave or signal, is unavailable to the
computer for performing the functions recited in claim 31. It is also likely that all
the information necessary to perform the functions of claim 31 never exists within
the carrier wave or signal at any one time. In other words, it is typical for
information that is transmitted by carrier wave or signal to begin to be received at
the receiver before all the information is transmitted. Therefore, it appears to us
that a computer program product for carrying out the claimed invention cannot
exist while the information is being transmitted on a carrier wave or signal.
For the above reasons, we find that claim 31 recites non-statutory subject
matter.6 Accordingly, we will sustain the examiner’s rejection of claim 31 under
35 U.S.C. § 101.
6 Although not before us on appeal, similar considerations apply to claim 25. Although the
examiner finds claim 25 statutory since the computer program product is “stored in” a computer
readable medium (as opposed to merely being “in” the medium), we find such a distinction does
not negate non-statutory subject matter (i.e., carrier waves or signals) from being included in
claim 25 for the reasons that we discussed with respect to claim 31. In our view, merely reciting
that the product is stored in a computer readable medium does not preclude such storage to
occur in transmission-type media (e.g., carrier waves or signals). Accordingly, the examiner
should reconsider whether claim 25 complies with 35 U.S.C. § 101.
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