Appeal 2009-3941
Application 10/334,370
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).
For the above reasons, we find that claim 1, as well as claims 2 and 5-
8, which depend thereon, recite non-statutory subject matter. Accordingly,
claims 1, 2, and 5-8 are rejected under 35 U.S.C. § 101.
DECISION
The decision of the Examiner rejecting claims 1, 3-8, 20, and 23-28
under 35 U.S.C. § 102 based on Brown is reversed with respect to claims 5-8
and 25-28 and affirmed with respect to claims 1, 3, 4, 20, 23, and 24. The
35 U.S.C. § 103 rejection of claims 2 and 22 based on Brown and
Yanagihara is affirmed.
This decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12,
2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 CFR
§ 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph
shall not be considered final for judicial review."
37 CFR § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner. . . .
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