Appeal 2007-2011
Application 09/823,272
we will sustain the obviousness rejection of claims 4 through 6, 8, 10, and
11, for which no additional arguments were presented.
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new ground of rejection against Appellants' claims 1, 3 through 8, and 10
through 13 under 35 U.S.C. § 101 as being nonstatutory.
The Supreme Court has held that claims that, as a whole, are directed
to nothing more than abstract ideas, natural phenomena, or laws of nature
are not statutory under 35 U.S.C. § 101. See Diamond v. Diehr, 450 U.S.
175, 185, 209 USPQ 1, 7 (1981). An application of a law of nature or
mathematical formula to a known structure or process, though, may be
patentable. Id. at 187, 209 USPQ at 8. However, a process that comprises
"no substantial practical application" of an abstract idea is not patentable, as
such a patent would in effect be a patent on the abstract idea itself.
Gottschalk v. Benson, 409 U.S. 63, 71-72, 175 USPQ 673, 676 (1972).
Clearly, the present claims recite neither a natural phenomenon nor a
law of nature, so the issue is whether they are directed to an abstract idea.
We note that it is generally difficult to ascertain whether a process is merely
an abstract idea, particularly since claims are often drafted to include minor
physical limitations such as data gathering steps or post-solution activity.
However, if the claims are considered to be an abstract idea, then the claims
are not eligible for and, therefore, are excluded from patent protection.
Claims 1 and 3 through 6 recite "an indexing method of a feature
vector data space" and claims 12 and 13 recite a "method of searching for
similarity in a feature vector data space." The claims do not require any type
of machine, such as a computer. Thus, the methods appear to be
disembodied concepts or abstractions. A programmed general purpose
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