Ex Parte Colgrave

Patent Trial and Appeal Board

Jun 29, 2018

14563896 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/563,896
141836 7590
IBM Poughkeepsie
C/O: Fabian VanCott
215 South State Street
Suite 1200
12/08/2014
07/03/2018
Salt Lake City, UT 84111
FIRST NAMED INVENTOR
John Colgrave
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
GB920030007US2 1071
EXAMINER
COPPOLA, JACOB C
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patents@fabianvancott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN COLGRA VE
Appeal 2016-005119
Application 14/563,896 1
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING and
NINA L. MEDLOCK, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
John Colgrave (Appellant) seeks our review under 35 U.S.C. § 134(a)
of the Final Rejection of claims 1-8. We have jurisdiction under 35 U.S.C.
§ 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 The Appellant identifies International Business Machines Corporation as
the real party in interest. App. Br. 2.
Appeal 2016-005119
Application 14/563,896
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A system for implementing a registry of business entity
definitions, the system comprising:
at least one processor; and
a computer readable memory communicatively coupled
to said processor having said business entity definitions stored
thereon;
wherein said system is programmed to:
receive a request from a user to access a business entity
definition in said registry, said business entity definition
comprising a plurality of information elements, each of said
information elements having permission details associated
therewith;
obtain the identity of the user from data associated with
the request;
determine, for each of said information elements,
whether the user has permission to access that said information
element based on the permission details associated with that
said information element and said identity of the user; and
deny the user access to those information elements for
which it is determined that the user does not have permission.
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Nykanen
Keene
US 2002/0174117 Al
WO 01/22299 Al
2
Nov. 21, 2002
Mar. 29, 2001
Appeal 2016-005119
Application 14/563,896
The following rejections are before us for review:
1. Claims 1-8 are rejected under 35 U.S.C. § 101 as being directed to
judicially-excepted subject matter.
2. Claims 1-8 are rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
3. Claims 1-8 are rejected under 35 U.S.C. § 112, second paragraph, as
failing to particularly point out and distinctly claim the subject matter
which Appellant regards as the invention.
4. Claims 1-8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nykanen and Keene.
5. Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Keene and Nykanen.
6. Claims 1-8 are provisionally rejected on the ground of nonstatutory
double patenting as being unpatentable over the claims of co-pending
Application 10/561,260.
ISSUES
Did the Examiner err in rejecting claims 1-8 under 35 U.S.C. §101 as
being directed to non-statutory subject matter?
Did the Examiner err in rejecting claims 1-8 are rejected under
35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement?
Did the Examiner err in rejecting claims 1-8 are rejected under
35 U.S.C. § 112, second paragraph, as failing to particularly point out and
distinctly claim the subject matter which Appellant regards as the invention?
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Did the Examiner err in rejecting claims 1-8 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Nykanen and Keene?
Did the Examiner err in rejecting claims 7 and 8 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Keene and Nykanen?
Did the Examiner err in rejecting claims 1-8 are provisionally rejected
on the ground of nonstatutory double patenting as being unpatentable over
the claims of co-pending Application 10/561,260?
ANALYSIS
The rejection of claims 1-8 under 35 US.C. §101 as being directed to
judicially-excepted subject matter.
The Appellant argues these claims as a group. See App. Br. 10-15.
We select claim 1 as the representative claim for this group, and the
remaining claims 2-7 stand or fall with claim 1. 3 7 C.F .R. § 41.3 7 ( c )(1 )(iv).
Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347
(2014) identifies a two-step framework for determining whether claimed
subject matter is judicially-excepted from patent-eligibility under 35 U.S.C.
§ 101.
According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355.
In that regard, the Examiner determined "[ t ]he claims are directed to
the abstract idea of controlling access to business entity definitions." Final
Rej. 2.
The Appellant agrees that claim 1 is directed to, more generally, the
concept of controlling access to data. "[I]t would seem that the 'abstract
idea' at issue is controlling access to data." App. Br. 10.
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The Appellant then argues that "the claimed subject matter is
significantly more than the abstract idea of 'controlling access to data"'
(App. Br. 10) because:
"controlling access to business entity definitions" is a specific
application of the larger idea of controlling access to data[ ]
[and] Appellant's claims are to specific machines that control
access to business entity definitions including all of the
following: requiring that a business entity definition be divided
into a plurality of information elements, each of which has
separate permission details associated therewith, and requiring
that it is the identity of the user, and not some other
characteristic or classification, that determines, on an element-
by-element basis, whether access will be granted.
Id. at 10-11 (emphasis added).
This is an unpersuasive argument.
Focusing on "business entity definitions" as the type of data to which
access is controlled does not render the abstract idea "controlling access to
data" any less abstract. Limiting "data" to which access is controlled to
"business entity definitions" simply limits the "controlling access to data"
abstract idea to a particular environment; that is, to business entity
definitions. Cf Return Mail, Inc. v. United States Postal Service, 868 F.3d
1350, 1368 (Fed. Cir. 2017) ("'[L]imit[ing] the abstract idea to a particular
environment,"' here a mail processing system with generic computing
technology, "'does not make the claims any less abstract for the step 1
analysis."') (quoting In re TL! Commc'ns LLC Patent Litig., 823 F.3d 607,
613 (Fed. Cir. 2016)). See also Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1353 (Fed. Cir. 2016) ("collecting information, including
when limited to particular content (which does not change its character as
information), [is] within the realm of abstract ideas.") It still is an abstract
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idea but one described at a lower level of abstraction. Cf Apple, Inc. v.
Ameranth, Inc., 842 F.3d 1229, 1240-41 (Fed. Cir. 2016) ("An abstract idea
can generally be described at different levels of abstraction. As the Board
has done, the claimed abstract idea could be described as generating menus
on a computer, or generating a second menu from a first menu and sending
the second menu to another location. It could be described in other ways,
including, as indicated in the Specification, taking orders from restaurant
customers on a computer.")
Step two is "a search for an 'inventive concept'-i.e., an element or
combination of elements that is 'sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself."' Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 US 66, 73 (2012)).
In that regard, the Examiner determined that
[ t ]he additional elements or combination of elements in the
claims other than the abstract idea per se amount to no more
than: (i) mere instructions to implement the idea on a computer,
and/or (ii) recitation of generic computer structure that serves to
perform generic computer functions that are well-understood,
routine, and conventional activities previously known to the
pertinent industry. Viewed as a whole, these additional claim
elements do not provide meaningful limitations to transform the
abstract idea into a patent eligible application of the abstract
idea such that the claims amount to significantly more than the
abstract idea itself. For example, claim 1 generically recites a
"system" programmed to perform well understood, routine, and
conventional activities such as denying a user access to data if
they do not have permission to the data. Also, for example,
claim 7 recites a "server computer . . . wherein the server is
programmed for," which is merely a generically recited
computer structure with software for performing routing
operations, such as "receiving a request .... "
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Final Rej. 2-3.
The Appellant argues that claim 1 presents something novel. "[I]t
cannot be reasonably argued at this point that Appellant's claims are to an
abstract idea because they present nothing novel, nothing that is not well-
known and conventional." App. Br. 11.
"[N]ovelty in implementation of the idea is a factor to be considered
only in the second step of the Alice analysis." Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). Novelty is a factor to be
considered when determining "whether the claims contain an 'inventive
concept' to 'transform' the claimed abstract idea into patent-eligible subject
matter." Id. However, a finding of novelty or nonobviousness does not
necessarily lead to the conclusion that subject matter is patentable eligible.
"Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the§ 101 inquiry." Ass 'nfor Molecular Pathology v. Myriad
Genetics, Inc., 133 S. Ct. 2107, 2117 (2013). The question in step two of the
Alice framework is not whether an additional feature is novel but whether
the implementation of the abstract idea involves "more than the performance
of 'well-understood, routine, [and] conventional activities previously known
to the industry."' Content Extraction and Transmission LLC v. Wells Fargo
Bank, Nat. Ass 'n, 776 F.3d 1343, 1347--48 (quoting Alice, 134 S. Ct.
at 2359).
In that regard, the Appellant has not shown the novel features
transform the abstract idea into patent-eligible subject matter. The system
claimed involves the use of a "processor," "computer readable memory" and
programming which the Specification suggests covers generic devices and
software (see Spec. 5: 14--19 ("any such client/server . . . has a processor")
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and 13 :4--5 ("could be implemented in a variety of programming
languages"). As claimed, the processor performs certain information
processing steps such as "receiving," "obtaining," determining," and
"denying" that generic processors are known to perform.
The Appellant further argues pre-emption. "It should be clear that
Appellant's claims do not monopolize the idea of controlling access to data."
App. Br. 12.
Appellant's claims apply only if the use of business entity
definitions that comprising multiple elements each of which has
separate permission details associated therewith for controlling
access. Appellant's claims apply only if the identity of the
requestor, and not some other characteristic or classification, is
considered against the permission details on an element-by-
element basis for granting or denying access to a specific
element of the business entity definition.
App. Br. 12.
A difficulty with this argument appears to be that it confuses the pre-
emption concern with the level of abstraction describing the abstract idea.
With respect to the pre-emption concern, "[ w ]hat matters is whether a claim
threatens to subsume the full scope of a fundamental concept, and when
those concerns arise, we must look for meaningful limitations that prevent
the claim as a whole from covering the concept's every practical
application." CLS Bank Intern. v. Alice Corp. Pty. Ltd., 717 F.3d 1269,
1281 (Fed. Cir. 2013) (Lourie, J., concurring). Here, said relied-on claim
limitation simply narrows the abstract idea so that it is described at a lower
level of abstraction. It does not render the abstract idea to which the claim is
directed to any less an abstract idea. Pre-emption is not a separate test.
To be clear, the proper focus is not preemption per se, for some
measure of preemption is intrinsic in the statutory right granted
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with every patent to exclude competitors, for a limited time,
from practicing the claimed invention. See 35 U.S.C. § 154.
Rather, the animating concern is that claims should not be
coextensive with a natural law, natural phenomenon, or abstract
idea; a patent-eligible claim must include one or more
substantive limitations that, in the words of the Supreme Court,
add "significantly more" to the basic principle, with the result
that the claim covers significantly less. See Mayo 132 S. Ct. at
1294. Thus, broad claims do not necessarily raise§ 101
preemption concerns, and seemingly narrower claims are not
necessarily exempt.
Id. See also Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
13 79 (Fed. Cir. 2015) ("[ w ]hile preemption may signal patent ineligible
subject matter, the absence of complete preemption does not demonstrate
patent eligibility."). Because we find the claimed subject matter covers
patent-ineligible subject matter, the pre-emption concern is necessarily
addressed. "Where a patent's claims are deemed only to disclose patent
ineligible subject matter under the Mayo framework, []preemption concerns
are fully addressed and made moot." Ariosa Diagnostics, 788 F.3d at 1379.
Finally, Appellant relies on DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014) to argue that "the present claims are
necessarily rooted in computer technology and describe subject matter to
address issues specifically arising in the realm of computer networks." App.
Br. 13.
However, there is no mention of computer networks in claim 1 and
the computer technology that claim 1 does mention the Specification
suggests covers generic devices and software. Cf Dealertrack, Inc. v.
Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012) ("[s]imply adding a 'computer
aided' limitation to a claim covering an abstract concept, without more, is
insufficient to render the claim patent eligible."). "[T]he claims at issue [in
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DDR] specif-1ied] how interactions with the Internet are manipulated to yield
a desired result-a result that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a hyperlink." DDR,
674 F.3d at 1257. In contrast, here claim 1 covers generic elements and
programming to perform information processing steps such as "receiving,"
"obtaining," determining," and "denying" that they are known to perform,
albeit involving specific types of information which as such do not add
significantly more to the controlling access to data abstract idea claim 1 is
directed to. See Bancorp Services, L.L. C. v. Sun Life Assur. Co. of Canada
(US.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) ("[T]he use of a computer in an
otherwise patent-ineligible process for no more than its most basic
function-making calculations or computations-fails to circumvent the
prohibition against patenting abstract ideas and mental processes.").
The Appellant further argues that "claims 1 and 7 each recite[ s] a
machine, which is an expressly permitted category of patentable subject
matter under 35 U.S.C. § 101." App. Br. 14. But the question is not whether
claims 1 and 7 are statutory. They are. The question is whether they are
judicially-excepted from patent-eligibility for being directed to an abstract
idea without adding significantly more to transform it into an inventive
concept. In that regard, for the foregoing reasons, the Appellant's arguments
are unpersuasive as to error in the Examiner's determination that claims 1
and 7 are patent-ineligible.
We have considered all of the Appellants' remaining arguments and
have found them unpersuasive. Accordingly, because representative
claim 1, and claims 2-7 which stand or fall with claim 1, are directed to an
abstract idea and do not present an "inventive concept," we sustain the
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Examiner's determination that they are directed to ineligible subject matter
under 35 U.S.C. § 101. Cf LendingTree, LLC v. Zillow, Inc., 656 F. App'x
991, 997 (Fed. Cir. 2016) ("We have considered all ofLendingTree's
remaining arguments and have found them unpersuasive. Accordingly,
because the asserted claims of the patents in suit are directed to an abstract
idea and do not present an "inventive concept," we hold that they are
directed to ineligible subject matter under 35 U.S.C. § 101.").
The rejection of claims 1---8 are under 35 US. C. § 112, first paragraph, for
failing to comply with the written description requirement.
The Examiner's position is that "claim [ 1] is directed to a genus
without sufficient written description. '[G]eneric language in the application
as filed does not automatically satisfy the written description requirement.'
Ariad Pharmaceuticals Inc. v. Eli Lilly & Co., 94 USPQ2d 1161, 1172
(Fed. Cir. 2010)." Final Rej. 4.
However, "[a] claim will not be invalidated on section 112 grounds
simply because the embodiments of the specification do not contain
examples explicitly covering the full scope of the claim
language." LizardTech, Inc. v. Earth Resource Mapping, Inc., 424 F.3d
1336, 1345 (Fed. Cir. 2005).
On the specific matter of whether there is adequate written descriptive
support in the original Specification for what is now claimed, the question is
whether "the specification [ ] describe[ s] the invention in sufficient detail so
'that one skilled in the art can clearly conclude that the inventor invented the
claimed invention as of the filing date sought.' Lockwood v. Am. Airlines,
Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997) [ ]." In re Alonso, 545 F.3d 1015
(Fed. Cir. 2008). In that regard, claim 1 appears to be similar in scope to the
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claims as originally filed. "Original claims are part of the specification and
in many cases will satisfy the written description requirement." LizardTech,
424 F.3d at 1346 (noting "that an originally filed claim can provide the
requisite written description to satisfy section 112," but holding that
"nothing in claim 21 or the specification constitutes an adequate and
enabling description" despite the fact that "claim 21 is part of the original
disclosure").
The rejection is not sustained.
The rejection of claims 1---8 under 35 US.C. § 112, second paragraph, for
failing to particularly point out and distinctly claim the subject matter which
Appellant regards as the invention.
The Examiner takes the position that "the limitations 'system []
programmed to [functions]' and 'server[] programmed for [functions]"' in
claims 1 and 7, respectively, are "simply [ ] substitute[ s] for the phrase
'means for."' Final Rej. 6. Accordingly, the Examiner attaches a rebuttable
presumption that "35 U.S.C. § 112, i-f 6" (Final Rej. 7) applies to these
claims. Consistent therewith, the Examiner found that "the written
description fails to clearly link or associate the disclosed structure to the
claimed function such that one of ordinary skill in the art would recognize
what structure performs the claimed function." Final Rej. 7. Consequently,
the Examiner determined the claims to be indefinite.
The Appellant argues that "[ o ]ne of skill in the art would understand
that the "processor" recited in claim 1 could be satisfied by the "processor"
described in the specification. (Appellant's specification, p. 5, lines 21-36).
And, that the server recited in claim 7 could be satisfied by the server
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described in the specification. (Appellant's specification, element 10,
Fig. 1 )." App. Br. 20.
The difficulty with the Examiner's position is that it has not been
shown that claims 1 and 7 require the "system"/"server" to perform
functions that generic systems/servers are not expected to perform. It
generally known that generic computers process information so as to
"receive," "obtain," "determine," and "deny" information. Albeit the claims
process specific types of information, that does affect a generic computer's
common processing functions. Appellant's citing of disclosure in the
Specification (e.g., element 10 (e.g., "Processor") in Fig. 1) of generic
devices to perform said functions shows that Appellant agrees with that
view.
Given no further reasoning as to why generic systems/servers are not
expected to perform said functions as claimed, the requirement for
disclosure of additional structure in order to render the claims definite has
not been made out in the first instance. Cf Ergo Licensing, LLC v.
CareFusion 303, Inc., 673 F.3d 1361, 1364---65 (Fed. Cir. 2012):
In re Katz Interactive Call Processing Patent Litigation
identified a narrow exception to the requirement that an
algorithm must be disclosed for a general-purpose computer to
satisfy the disclosure requirement: when the function "can be
achieved by any general purpose computer without special
programming." 639 F.3d 1303, 1316 (Fed.Cir.2011). In In re
Katz, we held that "[a]bsent a possible narrower construction"
of the terms "processing," "receiving," and "storing," the
disclosure of a general-purpose computer was sufficient. Id.
We explained that "[i]n substance, claiming 'means for
processing,' 'receiving,' and 'storing' may simply claim a
general-purpose computer, although in means-plus-function
terms." Id. at 1316 n. 11. In other words, a general-purpose
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computer is sufficient structure if the function of a term such as
"means for processing" requires no more than merely
"processing," which any general-purpose computer may do
without any special programming. Id. at 1316-17. If special
programming is required for a general-purpose computer to
perform the corresponding claimed function, then the default
rule requiring disclosure of an algorithm applies. It is only in
the rare circumstances where any general-purpose computer
without any special programming can perform the function that
an algorithm need not be disclosed.
The Examiner also found that "[c]laim 2 recites (in-part) 'the data
processing host device is further configured to ' Claim 2 is indefinite
because the phrase "the data processing host device" lacks antecedent basis
and therefore it is unclear to which claim element the phrase "the data
processing host device" refers to. Claims 3-5 recite similar limitations."
Final Rej. 8.
The Appellant argues that "[t]his is simply correct. If the decision in
this appeal is otherwise favorable, Appellant asks leave to correct the claims
in this regard." Reply Br. 15.
Accordingly, the rejection of claims 2-5 on this ground is affirmed.
The rejection of claims 1---8 under 35 US.C. § 103(a) as being unpatentable
over Nykanen and Keene.
but
The Examiner's position is that Nykanen discloses all that is claimed
does not directly disclose: each of said information elements
having permission details associated therewith; the processor
configured to: determine for each of said information elements,
whether the user has permission to access that said information
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element based on the permission details associated with that
said information element and said identity of the user; and deny
the user access to those information elements for which it is
determined that the user does not have permission.
Final Rej. 9.
Keene is relied on as disclosing said missing disclosure. Final Rej. 10. The
Examiner argues, inter alia, that "it would have been obvious to one of
ordinary skill in the art, at the time the invention was made, to modify the
system ofNykanen to include having permission details associated with
each element, as taught by Keene, and to modify the process ofNykanen to
include determining whether the user has permission to access each element,
also taught by Keene." Final Rej. 10.
The difficulty with the Examiner's position is that it does explain how
the combination of Nykanen and Keene would lead one of ordinary skill in
the art, first, to include "a plurality of information elements, each of said
information elements having permission details associated therewith" in a
business entity definition, and then, second, to determine for each of said
information elements, whether the user has permission to access that said
information element based on the permission details associated with that
said information element and said identity of the user; and deny the user
access to those information elements for which it is determined that the user
does not have permission, as claimed. We agree with the Appellant that
Keene is merely describing that groups of data or objects may
have access codes associated therewith and that an authorized
user is granted access to that group or object. Keene does not
teach or suggest different access privileges for different
information elements within a business entity definition as
claimed. None of the cited references teach or suggest this idea.
App. Br. 22.
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We agree that "[ n ]either reference, nor any combination of the two, teaches
or suggests that a particular user may have access [to] some elements within
the business entity definition and not to others: 'determin[ing]for each of
said information elements, whether the user has permission to access that
said information element based on the permission details associated with
that said information element and said identity of the user.' (Claim 1 [7])
(emphasis added)." App. Br. 22.
The rejection is not sustained.
The rejection of claims 7 and 8 are rejected under 35 US.C. § 103(a) as
being unpatentable over Keene and Nykanen.
The Examiner's position is that Keene discloses all that is claimed but
for "that the record is a business entity definition," for which Nykanen is
relied on. Final Rej. 15. "[I]t would have been obvious to one of ordinary
skill in the art, at the time the invention was made, to modify the records of
Keene to include business entity definitions, as taught by Nykanen." Id.
But this has a similar difficulty. The claims do not simply call for
information elements having permission details as Keene is said to disclose
and a business entity definition as Nykanen is said to disclose. Rather, the
claims call for "a business entity definition comprising a plurality of
information elements, each of said information elements having permission
details associated therewith." How one of ordinary skill in the art given
Keene's information elements having permission details and Nykanen's
business entity definition would be led first, to include "a plurality of
information elements, each of said information elements having permission
details associated therewith" in a business entity definition, and then,
second, to determine for each of said information elements, whether the user
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has permission to access that said information element based on the
permission details associated with that said information element and said
identity of the user; and deny the user access to those information elements
for which it is determined that the user does not have permission, as claimed,
is not adequately explained.
The rejection is not sustained.
The provisional rejection of claims 1---8 on the ground of nonstatutory
double patenting as being unpatentable over the claims of co-pending
Application 101561,260.
The Appellant argues
[ w ]ithout addressing the merits of this rejection, Appellant
requests that this rejection be held in abeyance until the claims
are otherwise in condition for allowance. If a double patenting
rejection is still deemed appropriate by the Examiner at that
point, Appellant will formally respond.
App. Br. 28.
Given no substantive argument as to error in the rejection, it is
summarily affirmed.
CONCLUSIONS
The rejection of claims 1-8 under 35 U.S.C. § 101 as being directed to
non-statutory subject matter is affirmed.
The rejection of claims 1-8 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement is reversed.
The rejection of claims 1 and 6-8 under 35 U.S.C. § 112, second
paragraph, as failing to particularly point out and distinctly claim the subject
matter which Appellant regards as the invention is reversed.
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The rejection of claims 2-5 under 35 U.S.C. § 112, second paragraph,
as failing to particularly point out and distinctly claim the subject matter
which Appellant regards as the invention is affirmed.
The rejection of claims 1-8 under 35 U.S.C. § 103(a) as being
unpatentable over Nykanen and Keene is reversed.
The rejection of claims 7 and 8 under 35 U.S.C. § 103(a) as being
unpatentable over Keene and Nykanen is reversed.
The provisional rejection of claims 1-8 on the ground of nonstatutory
double patenting as being unpatentable over the claims of co-pending
Application 10/561,260 is affirmed.
DECISION
The decision of the Examiner to reject claims 1-8 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)(l )(iv).
AFFIRMED
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