Appeal 2007-1202
Application 10/847,052
13. After the processor performs the self-diagnostic test, the processor tests
the transducers and provides an indication of fault. (See col. 13, ll. 47-66 and steps
208-210 in figure 14.)
PRINCIPLES OF LAW
Although no rejection under 35 U.S.C. § 101 is before this Board, the
decisions of our reviewing courts on this issue do provide useful guidance with
respect to (a) distinctions between “functional” and “non-functional” descriptive
material, and (b) how the distinctions impact the courts’ treatment of each type of
descriptive material.
When functional descriptive material is recorded on some computer-
readable medium, it becomes structurally and functionally interrelated to the
medium and will be statutory in most cases since use of technology permits the
function of the descriptive material to be realized. Compare In re Lowry, 32 F.3d
1579, 1583-84, 32 USPQ2d 1031, 1035 (Fed. Cir. 1994) (claim to data structure
stored on a computer readable medium that increases computer efficiency held
statutory) and In re Warmerdam, 33 F.3d 1354, 1360-61, 31 USPQ2d 1574, 1759
(claim to computer having a specific data structure stored in memory held statutory
product-by-process claim) with Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760
(claim to a data structure per se held nonstatutory).
When non-functional descriptive material is recorded on some computer-
readable medium, in a computer, or on an electromagnetic carrier signal, it is not
statutory since no requisite functionality is present to satisfy the practical
application requirement. Merely claiming non-functional descriptive material, i.e.,
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