Appeal 2007-2130
Application 10/141,222
OPINION
For the reasons set forth by the Examiner in the Answer, we sustain
each of the three stated rejections of the claims on appeal as expanded upon
here.
Turning first to the rejection of claims 11 through 19 and 31 through
33 as being directed to non-statutory subject matter, we agree with the
Examiner’s views expressed in the Answer as to this issue. The Examiner
has made a direct point that the claimed policy manager, logic, collection
criteria and collection instructions, based on the Specification as filed as
well as their own recitation in the respective claims on appeal, directly relate
to software elements per se. Appellant has not indicated among the claims
rejected what structural relationships are actually stated in the claims on
appeal despite his general argument to that affect. Moreover, we do not
agree with Appellant’s view that MPEP § 2106 clearly indicates that
software is not per se non-statutory. We do not view the claims as being
consistent with any permissive language contained within this section of the
MPEP. Nevertheless, there is no authority that we know of which permits
software per se to be considered statutory within 35 U.S.C. § 101.
Appellant’s arguments in the Brief and Reply Brief do not contest the
Examiner’s view that the noted features in the claims are actually software
elements per se.
At this point in our opinion, we observe in passing that, should there
be any future prosecution of this application, it appears to us that all present
pending claims on appeal may be subject to rejections under 35 U.S.C.
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Last modified: September 9, 2013