Appeal 2007-1315
Application 09/828,437
1 relation to the rest of the claim other than they are what the claimed subject matter
2 presents in the listing and graphic displays. Thus they are both nonfunctional and
3 descriptive material.
4 The Appellants contend that the contents of the listing and display further
5 define the structure of their system. The Appellants analogize their listing and
6 display contents to programming that creates a new machine. The Appellants
7 finally argue that the relation between the travel parameters and the listing and
8 display contents constitutes a physical organization on the computer memory. (Br.
9 16-17).
10 While creative, this argument is unpersuasive. First, by this argument, a
11 computer with a copy of the latest novel on its hard drive would patentably
12 distinguish over another computer with a different novel. The organization of the
13 bits and bytes would differ between the two machines, but not in any functional
14 manner. In contrast, In re Alappat, 33 F.3d 1526, 31 USPQ2d 1545 (Fed. Cir.
15 1994), cited by the Appellants, referred to a high level software program recitation
16 within its claim, and In re Lowry, 32 F.3d 1579, 32 USPQ2d 1031 (Fed. Cir.
17 1994), also cited by the Appellants, referred to a functional data structure whose
18 structure was recited within its claim. The contents of the Appellants’ listing and
19 display recite neither a computer program nor a functional data structure; they are
20 descriptive material that bear no functional relation to the remainder of the claim.
21 Thus, they are nonfunctional descriptive material.
22 As such, the contents of the listing and display are considered, but given no
23 patentable weight, and they will not patentably define the claimed subject matter
24 over the prior art.
18
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