Appeal 2007-3939 Application 10/448,725 analysis above, we sustain the 35 U.S.C. § 102 rejection of claims 1-6 and 8- 19 as anticipated by Calfee. 2 DECISION The decision of the Examiner rejecting claims 1-6 and 8-19 under 35 U.S.C. § 102 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). 2 We observe that claims 1 and 9 recite method steps and functions to be performed by an apparatus, describing mainly a concept without indicating how the steps are implemented. These claims are merely drawn to “disembodied abstract ideas,” which do not have any “real world effect” until they are implemented. The absence of any transformation of physical subject matter according to the definition of a process under 35 U.S.C. § 101, places these claims on the other side of the line defining statutory subject matter. A case involving this issue is presently on appeal to the Federal Circuit: In re Bilski, No. 2007-1130 (to be argued Oct. 1, 2007). Additionally, in performing the method steps of claim 1, there is no requirement that a computer be used. Therefore, the claimed subject matter may be performed using only human intelligence, which has recently been held to be non-statutory. In re Comiskey, No. 2006-1286, Slip Op. at 21 (Fed. Cir. Sep. 20, 2007). We do not need to reach the issue of whether claims 1 and 9 encompass non-statutory subject matter since we affirm the Examiner’s decision rejecting these claims. However, we encourage the Examiner to consider patentability of the allowed claims 7 and 20, which are dependent upon claims 1 and 9, under Section 101 in the event the prosecution of these claims is reopened. 8Page: Previous 1 2 3 4 5 6 7 8 9 Next
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