Ex Parte Betts et al., Appeal 2010-004256, Application 11/132,649, PTAB 2013 concerns a software patent application that relates to balancing load requests and failovers using a UDDI proxy. Illustrative claim 14 was rejected under 35 U.S.C. § 101 and read as follows:
14. A system for connecting to a web service comprising: a web service-selecting unit for selecting a web service; a server-selecting unit for selecting a server among one or more servers capable of running the selected web service, the selected server being selected by the server-selecting unit independent of input from a requesting application subsequent to selection of the web service; a determining unit for determining a real address for the selected web service running on the selected server; and a connecting unit for connecting to the selected web service running on the selected server using the determined real address.
The PTAB concluded that claim 14 encompassed software without physical embodiment, i.e., software per se, which is an abstract idea and not a “process, machine, manufacture, or composition of matter,” as required by § 101.
Ex Parte Krause, Appeal 2010-012129, HP Application 10/442,401, PTAB 2013 concerns a software patent application that relates to network congestion management using one or more timers to provide a frame delay indication when delay conditions exist for more than a variable time that is based on a network system attribute. Claim 51 was rejected under 35 U.S.C. § 101 and reads as follows:
51. An end station comprising:
an aggressive timer adapted to monitor network traffic, and respond to an occurrence of at least one condition of delayed frame transmission progress to provide a first frame delay indication when the at least one condition exists for a duration that exceeds a variable timing threshold, wherein the variable timing threshold is configurable based on at least one network system attribute.
The Appellant contended that the Examiner erred in rejecting certain claims under 35 U.S.C §101 because the claims recited an “end station,” which is defined as hardware. The Board stated that Appellant’s argument did not cite evidence to rebut the Examiner’s interpretation that the claim encompasses either hardware or software. Accordingly, they declined to reverse the rejection.
Ex Parte Barsness, Appeal 2010-011009, IBM Application 11/316,285, PTAB 2013 relates to characterizing HTTP session workload in a web server in which multiple HTTP sessions are processed in a first computer system and session-persistent state data for HTTP sessions is maintained in the first computer system. Claim 10 is directed to “computer-executable instructions tangibly recorded on a computer-readable media” and reads as follows:
10. A computer program product for characterizing HTTP session workload of a web server, comprising:
a plurality of computer-executable instructions tangibly recorded on computer- readable media, wherein said instructions, when executed by at least one computer system, cause the at least one computer system to perform the steps of:
accessing redundant session-persistent state data stored in a first computer system, said redundant session-persistent data being received in said first computer system from a second computer
system, said redundant session-persistent state data representing session-persistent state maintained by said second computer system for processing a plurality of HTTP sessions by said second computer system, said redundant session- persistent sate data being stored in said first computer system in a manner supporting recovery of session state of said plurality of HTTP sessions using said redundant session- persistent state data; and
characterizing said HTTP session workload using said redundant session-persistent state data accessed by said accessing step.
Appellants argued that claim 10 recites “tangibly recorded on computer readable media” thus restricting embodiments in which the media and the information recorded on it have some physical form. The PTAB found that the Specification states the invention is capable of being distributed in the form of a wireless signal when exchanged from one signal-bearing medium to another. This falls within a propagating electromagnetic signal per se and thus, is not directed to one of the statutory categories.
Ex Parte Svendsen, Appeal 2011-001873, Application 11/837,876, PTAB 2013 relates to reducing and/or preventing multiple listing of a media item in a playlist. Claim 10 was rejected under 35 U.S.C. § 101 and reads as follows:
10. A system for reducing the multiple listing of a media item in a playlist, comprising:
a control system, wherein the control system is adapted to:
receive a media item recommendation for a media item
from a recommender;
determine whether there is a current listing of the media item in a playlist; and
based on whether there is the current listing, provide a resultant listing of the media item in the playlist to reduce multiple listings of the media item in the playlist.
The PTAB noted that the claimed “control system” could be implemented as software. As such, the PTAB was not persuaded by Appellants’ argument that the mere recitation of a “control system” (even if the Specification describes it as being associated with a memory) is sufficient to make the claims patent-eligible under 35 U.S.C. § 101 as it does not play a significant part in the performance of the claimed steps. The PTAB stated that, in short, the broadest reasonable interpretation of the claim language lead them to construe the “control system” as being directed to a computer program per se, which, as drafted, renders the claimed subject matter not patentable under 35 U.S.C. § 101. The PTAB referred to Gottschalk v. Benson, 409 U.S. 63, 72 (1972).
Ex Parte Xu, Appeal 2010-009107, Application 10/767,075, PTAB 2013 relates to determining location information for a node in a network. Claim 1 was rejected under 35 U.S.C. § 101 and reads as follows:
1. A method of determining location information for a computer system node in a network, the method comprising:
[(a)] determining first distances from the node to a set of global landmark nodes;
[(b)] determining second distances from the node to a set of local landmark nodes proximally located to the node, wherein the set of local landmark nodes are different than the set of global landmark nodes and the set of landmark nodes are located in routing paths between the node and the global landmark nodes; and
[(c)] determining location information for the node based on the first distances and the second distances.
The PTAB took the position that claim 1 as a whole is directed to a sequence of steps that can be performed by a person. They concluded that claim 1 is drawn to patent-ineligible subject matter and invalid under § 101.
Ex Parte Robert S. Bray, Appeal 2011-013427, Application 11/686,054, PTAB 2013 concerned a device positioned between two vertebrae. Dependent claim 3 was rejected under 35 U.S.C. § 101 and reads as follows:
3. The implant device of claim 1, wherein the device is positioned between two vertebrae through a lateral opening exposing a lateral side of the vertabrae.
The PTAB noted that the claim concerns positioning of the device not, for example, a human comprising a positioned device. They stated that the claims relate only to the correct placement of the device in the human patient, and as a whole, do not encompass a human organism. The PTAB noted that there was nothing in the statute, and they were unaware of any case that categorically excludes such devices.