PTAB affirms 35 USC 101 rejection in Ex parte McCANNE
“Abstract software code is an idea without physical embodiment . . . .” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). A claim that recites no more than software, logic, or a data structure (i.e., an abstraction) does not fall within any statutory category. See In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). A reasonable interpretation of claims 16 and 36 consistent with Appellants’ Specification is that the claims recite no more than software per se which does not fall within one of the four categories of subject matter that are eligible for patent protection under § 101: (1) processes; (2) machines; (3) manufactures; and (4) compositions of matter. 35 U.S.C. § 101. Rather, claims 16 and 36 are directed to an abstract idea. See Bilski v. Kappos, 130 S.Ct. 3218, 3230 (2010); see also Bancorp Services, L.L.C. v. Sun Life Assur. Co. of Canada, 687 F.3d 1266, 1281 (Fed. Cir. 2012).
Accordingly, we find no error in the Examiner’s rejection of claims 16 and 36 as being direct to non-statutory subject matter.
PTAB reversed the examiner on a 102(e) rejection, but misstated the ultimate result:
Based on the analysis above, we conclude that the Examiner erred in
rejecting claims 16, 18-24, 26, and 28-39 for anticipation under 35 U.S.C. § 103(a), but did not err in rejecting claims 16 and 36 as being directed to non-statutory subject matter under 35 U.S.C. § 101.