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In addition, the presence of noise in an input signal can cause portions of the waveform to oscillate between contiguous pixel rows when the magnitude of the input signal lies between values represented by the elevations of the two rows. A court must attend to its own jurisdiction, and the parties cannot grant jurisdiction by their consent. See In re Donaldson Co., 16 F.3d 1189, 1193, 29 USPQ2d 1845, 1848 (Fed. In fact, whether the invention is a process or a machine is irrelevant. Section 101 whether viewed as a process or a machine. Moreover, the vertical resolution of the display may be limited by the number of rows of pixels on the screen. Nevertheless, the absence of challenge removes peripheral and secondary issues, and leaves only the basic jurisdictional question. The language of the Patent Act itself, as well as Supreme Court rulings, clarifies that Alappats invention fits comfortably within 35 U. Section 101 of the Patent Act states: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Because a CRT screen contains a finite number of pixels, rapidly rising and falling portions of a waveform can appear discontinuous or jagged due to differences in the elevation of horizontally contiguous pixels included in the waveform. Although there remains opportunity for attack should the Commissioner again reconstitute a board the way he did here does he violate his own regulations, is there a due process question, what is the exact scope of the legislative grant of authority that attack has not here been launched. Not surprisingly, the initial Board found no problem with 35 U. Judge Rich, with whom I fully concur, reads Alappats application as claiming a machine. As discussed below, the legality of the Board panel which issued the reconsideration decision is in question, thus raising the issue of the validity of the decision itself and consequently our authority to review that decision. By use of the language at least three, Congress expressly granted the Commissioner the authority to designate expanded Board panels made up of more than three Board members. 175, 185, 187-88, 209 USPQ 1, 7-9 (1981) (citing, for example, Rubber-Tip Pencil Co. An inquiring and receptive attitude by the PTO to new technologies finds a mandate in the statute. Patent law has nicely fostered technological advance in the United States, for its principles are particularly suited to a free market system: it requires neither governmental intrusion nor federal funds to provide the incentive for industrial innovation; the innovation incentive is the direct consequence of the patent grant. It is thus appropriate constructively to apply statute, precedent, and policy to the variety of inventions that the information age has generated, and to remove the cloud on whether these inventions may participate in the benefits and obligations of the patent system. Therefore, this court should defer to the Commissioners interpretation of the meaning of this clause of section 7. Originally, these functions were colocated in the Office of the Commissioner, who had the authority to administer the Office as well as to act as the final stage of decision on individual applications by hearing appeals directly from the examiners. Blommer, The Board of Patent Appeals and Interferences, 1992 AIPLA Bulletin 188 (October, 1992); P. The Commissioner was made a member of the board along with the First Assistant Commissioner, the Assistant Commissioner and the examiners-in-chief. The Commissioner is not free to unduly interfere with individual adjudications that is, the application of established rules to independently found facts of a case. In this case the Board decision at bottom turned on an important issue of statutory interpretation what is patentable subject matter under Section 101 of the 1952 Patent Act. 1988) (five-member panel because of novelty of issue raised); Kwon v. When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative intent to the contrary. Section 7(b) plainly and unambiguously requires that the Commissioner designate at least three Board members to hear each appeal. Alappats claim to a rasterizer that is characterized by specified electronic functions and the means of performing them no more preempts the mathematical formulae that are used to direct these functions than did Chakrabartys bacterium preempt genetic theory. Law and public policy intertwine in embracing new fields in the scope of section 101. Indeed, the importance of the patent incentive in industrial innovation was the principal factor in the formation of the Federal Circuit. The Solicitor argues that the statute is ambiguous, that it is unclear what the composition of the Board must be for the Board to grant rehearings or to actually rehear an appeal. In 1861 the Board of Appeals was created, and the Commissioner was given the task of hearing appeals from this boards decisions. The Act of March 2, 1927, set up the division of authority in the Patent Office essentially as it exists today by abolishing the appeal to the Commissioner and delegating the task of hearing appeals solely to the newly expanded board. There no doubt are limits to the Commissioners power over Board adjudications. Blommer, The Board of Patent Appeals and Interferences, AIPLA Bulletin 188 (1992), P. Federico, The Board of Appeals 1861-1961, 43 JPOS 691 (1961), and Evolution of Patent Office Appeals, 22 JPOS 838-64, 920-49 (1940). Our holding is consistent with the broad supervisory authority that Congress has granted the Commissioner under Title 35 regarding the operation of the PTO. Contrary to suggestions by Amicus Curiae Federal Circuit Bar Association (FCBA), our holding does not conflict with this courts previous statements in Animal Legal Defense Fund v. He moves into new positions and relations certain particles of wood and iron, in various forms, and produces a complicated machine, by which he is able to accomplish a certain purpose, only because the properties of cohesion and the force of gravitation cause it to adhere together and enable the different parts to operate upon each other and to transmit the forces applied to them, according to the laws of motion. A preliminary canvas of ex parte appeals to the Board in the FY 1990-FY 1993 period (Oct. 30, 1993) indicates that the Board decided 17,132 appeals. On the patentable invention side fall anything that is not natures handiwork, but [the inventors] own. In Diehr, the Court indicated that in special cases, an algorithm is tantamount to a law of nature and therefore non-statutory. In re Meyer, 688 F.2d 789, 794-95, 215 USPQ 193, 197 (CCPA 1982). They seek protection for an invention that displays a smooth line on an oscilloscope. (b) The Board of Patent Appeals and Interferences shall, on written appeal of an applicant, review adverse decisions of examiners upon applications for patents . Finally, the statute provides that the Board of Patent Appeals and Interferences consists of [t]he Commissioner, the Deputy Commissioner, the Assistant Commissioners, and the examiners-in-chief. Johnson Gas Appliance Co., 917 F.2d 1574, 1579, 16 USPQ2d 1614, 1618 (Fed. For present purposes, the critical word is Only, appearing at the beginning of the third sentence of Section 7(b). The predecessor of Section 7 was section 482 of the Revised Statutes, as amended by the Act of March 2, 1927. Prior to this amendment, the Commissioner acted on petitions for rehearing of adverse Board decisions. Exemplary thereof is Section 6(a), which reads in pertinent part: The Commissioner, under the direction of the Secretary of Commerce, shall superintend or perform all duties required by law respecting the granting and issuing of patents. Quigg, 932 F.2d 920, 928-29, 18 USPQ2d 1677, 1684 (Fed. 1991), that the Board is not the alter ego or agent of the Commissioner. 56, 60 n.2 (1981) (amicus may not rely on new arguments not presented below), and Alappat has waived any due process argument by acquiescing to the Commissioners actions in this case. Finally, we acknowledge the considerable debate and concern among the patent bar and certain Board members regarding the Commissioners limited ability to control Board decisions through his authority to designate Board panels. It is evident, therefore, that the whole of the act of invention, in the department of useful arts, embraces more than the new arrangement of particles of matter in new relations. Of these, 1,551 involved a reconsideration decision by the Board. In determining what qualifies as patentable subject matter, the Supreme Court has drawn the distinction between inventions and mere discoveries. The Supreme Courts Diehr doctrine in effect recognizes that inventors are their own lexicographers. Although Alappats machine or process might employ an equation, it does not pre-empt that equation. When statutory interpretation is at issue, if the language of the statute is clear and fits the case, the plain meaning of the statute will be regarded as conclusive. The use of this word and its location in the statute say to me that Congress intended to draw a distinction between the initial hearing of an appeal which is to be heard by at least three members of the Board . ., who shall be designated by the Commissioner and a rehearing which I simply can see no other way to read the statute. See In re Bose Corp., 772 F.2d 866, 869, 227 USPQ 1, 3-4 (Fed. The Commissioner thus has the authority to convene an expanded panel which includes, or as in this case is predominately made up of, senior executive officers of the PTO such as the Deputy Commissioner, the Assistant Commissioner, the Boards Chairman and Vice-Chairman, and himself. The events surrounding the enactment of the 1927 Act do not indicate that Congress intended to eliminate entirely the great power understood to have been possessed by the Commissioner prior to the act. See In re Chatfield, 545 F.2d 152, 159, 191 USPQ 730, 736-37 (CCPA 1976) (Rich, J., dissenting); 1 D. Coexistent with the usage of these terms has been the rule that a person cannot obtain a patent for the discovery of an abstract idea, principle or force, law of nature, or natural phenomenon, but rather must invent or discover a practical application to a useful end. This simple text served the industrial revolution and the atomic age; surely it can serve modern electronics. It is estimated that 85-90% of the worlds technology is disclosed only in patent documents. I do not agree that we have jurisdiction over this appeal. The Patent Act provides that [o]nly the Board of Patent Appeals and Interferences has the authority to grant rehearings. On one hand, he argues that the board is not an independent body, but is simply an extension of the former power of the Commissioner to The board is an alternative avenue through which the Commissioner may make policy decisions, of which as head of the Patent Office, he is the final arbiter. See, e.g., In re King, 801 F.2d 1324, 1326, 231 USPQ 136, 138 (Fed. 1986) (Our review of a finding of anticipation [a fact question] is the same whether it was made by the board or by a district court.); compare In re Bond, 910 F.2d 831, 833, 15 USPQ2d 1566, 1567 (Fed. 1990) (anticipation is a question of fact for the board reviewed under the clearly erroneous standard), with Lindemann Maschinenfabrik Gmbh v. While the Commissioner has various vehicles at his command for announcing official interpretations of the agencys organic legislation and for enunciating agency policy, there is nothing unusual about using the adjudicative process for that purpose.
Therefore, before addressing the merits, it is appropriate that we first determine that the decision was rendered by a legally constituted panel to ensure that a jurisdictional cloud does not hang over our holding on the merits. Although Alappat does not contest the validity of the Boards reconsideration decision, jurisdiction cannot be conferred on this court by waiver or acquiescence. There is no evidence in the legislative history of Section 7, or Title 35 as a whole, clearly indicating that Congress intended to impose any statutory limitations regarding which Board members the Commissioner may appoint to an expanded panel or when the Commissioner may convene such a panel. The terms used in Section 101 have been used for over two hundred years since the beginnings of American patent law to define the extent of the subject matter of patentable invention. The text of section 101 has not changed since 1793, other than to change the word art to process. I know of no major technological advance, no new industry or evolving technology, that has not participated in the patent system. Mayer, J., with whom Michel, J., joins, dissenting. However, the Solicitor presents conflicting impressions of the board and its role. It is on this assumption that this court has routinely reviewed patentability decisions of the board on the same basis as it does those of a court. The Commissioner had a quite different view of how Section 101 should be interpreted than did the Board that initially heard the case. Indeed, at the end of the 1926 House and Senate hearings during which the last sentence of what is now Section 7(b) was discussed, the Senate Committee on Patents concluded: One lawyer [remarks of Fenning, chairman of the committee on laws and rules of the American Patent Law Association, Procedure in the Patent Office, Hearing on S. In other words, the Commissioner has but one vote on any panel on which he sits, and he may not control the way any individual member of a Board panel votes on a particular matter. In addition, an issue was raised at oral argument as to whether the Commissioners designation practices are governed by any provisions of the Administrative Procedure Act (APA), and if so, whether the Commissioners actions in this case violated any of these provisions. The FCBA does not have standing to make a due process argument, see Broadrick v. Moreover, neither of these issues is germane to the jurisdictional issue this court raised sua sponte, i.e., whether the Boards reconsideration decision constituted a statutorily valid decision under 35 U. Absent any congressional intent to impose such restrictions, we decline to do so sua sponte. The screen of an oscillosope is the front of a cathode-ray tube (CRT), which is like a TV picture tube, whose screen, when in operation, presents an array (or raster) of pixels arranged at intersections of vertical columns and horizontal rows, a pixel being a spot on the screen which may be illuminated by directing an electron beam to that spot, as in TV. Until 1861, the Commissioner heard all appeals from applicants for patents dissatisfied with an ex parte rejection by an examiner. The law empowers him to withhold a patent whenever in his judgment the invention is not patentable, or the issue of the patent is forbidden by the statutes, or the patent if granted would probably be held invalid by the courts. Merely inert matter alone is not the sole material with which he works. If we were to adopt the plain meaning analysis offered by this dissent, what are we to think about all such prior rehearing decisions? Indeed, the Supreme Court has clarified that section 101 means what it says: any new and useful invention is entitled to patent protection, subject to the remaining statutory conditions for patentability. Thus, the inventor can describe the invention in terms of a dedicated circuit or a process that emulates that circuit. Schall, J., dissenting, with whom Clevenger, J., joins. I believe that the decision on reconsideration is invalid because the grant of reconsideration was not by the full membership of the Patent and Trademark Office Board of Patent Appeals and Interferences (Board), as required by statute. See In re Bose, 772 F.2d 866, 869, 227 USPQ 1, 3 (Fed. 4812 Before the Committee on Patents, United States Senate, 69th Con. 19, 21-22 (1926)] has expressed the fear that in providing in lines 16-17, page 2 (sec. However, the present statutory scheme does allow the Commissioner to determine the composition of Board panels, and thus he may convene a Board panel which he knows or hopes will render the decision he desires, even upon rehearing, as he appears to have done in this case. The plain and unambiguous wording of Section 7 intertwining the powers of the Board and the Commissioner clearly indicates that Congress did not intend the Board to have such complete independence. Our conclusion is that the appealed decision should be reversed because the appealed claims are directed to a machine which is one of the categories named in 35 U. Each column in the array represents a different time period, and each row represents a different magnitude. In 1793, Congress dispensed with examination altogether: if a petition to the Secretary of State met the formal technical requirements of the statute, a patent was granted, leaving the responsibility for striking down invalid patents to the courts. In 1861, Congress established a board of three examiners-in-chief to hear appeals from examiners rejections in order to secure greater uniformity of action in the grant and refusal of letters-patent and to assist the Commissioner with appellate work. Nature supplies powers, and forces, and active properties, as well as the particles of matter, and these powers, forces, and properties are constantly the subjects of study, inquiry, and experiment, with a view to the production of some new effect or result in matter. As I shall demonstrate, the rationale that leads to this conclusion and the majoritys holding that Alappats rasterizer represents the invention of a machine are illogical, inconsistent with precedent and with sound principles of patent law, and will have untold consequences. A government act that is ultra vires is void, which means the defect in the appeal is not waived simply because the parties failed to raise it. Indeed, the line of demarcation between a dedicated circuit and a computer algorithm accomplishing the identical task is frequently blurred and is becoming increasingly so as the technology develops. Accordingly, we are without jurisdiction to hear Alappats appeal because it is not from a decision of the Board within the meaning of 28 U. Consistent with our discussion below, we hold that the answer to the first question is yes. In an Office Action mailed December 5, 1989, the Examiner finally rejected claims 15-19 under 35 U. Alappat appealed this rejection to the Board pursuant to 35 U. The Examiner then requested reconsideration of this decision, pursuant to section 1214.04 of the Manual of Patent Examining Procedure (MPEP), stating that the panels decision conflicted with PTO policy. is limited to the promotion of advances in the useful arts); In re Meyer, 688 F.2d 789, 795, 215 USPQ 193, 197 (CCPA 1982) (quoting OReilly v. Chisum, Patents Section 1.01, at 1-5 & n.9 (1993) ( [I]n enacting patent legislation, Congress is confined to the promotion of the useful arts, not science ( i.e., knowledge) in general . Patent cases involving the distinction between idea or principle may involve subtle distinctions. Each case presenting a question under Section 101 must be decided individually based upon the particular subject matter at issue. at 185-86, 209 USPQ at 8 (so interpreting Benson ). Some have justified this exclusion simply on the ground of lack of utility; some on the ground of lack of novelty; and some on the ground that laws of nature, albeit newly discovered, are the heritage of humankind. The structure resides in the configuration by which the device operates, as Judge Rich has explained, and is independent of how that configuration is provided. Likewise the patent appeals board resolves conflicts between individuals seeking exclusive rights to inventions and the governments interest in promoting free exchange of technology. 1987) (the ASBCA is intended to be independent of the Department of Defense, and its function is strictly quasi-judicial). The Patent Act does give the Commissioner authority to designate the members who will sit on panels of the board, 35 U. By way of another example, Congress specifically limited the independence of the Board of Veterans Appeals. This separation is particularly important in fact-finding: the adjudicator is entitled to independence, i.e., freedom from interference, in determining the facts of the case. Section 101 as being directed to non-statutory subject matter. Section 134 (1988), and a three-member panel made up of Examiners-in-Chief Lindquist, Thomas, and Krass reversed the Examiners non-statutory subject matter rejection in a decision mailed June 26, 1991. (15 How.) 62, 132-33 (1853) (Grier, J., concurring)); 1 D. The general purpose of the statutory classes of subject matter is to limit patent protection to the field of applied technology, what the United States constitution calls the useful arts. Additionally, unapplied research, abstract ideas, and theory continue to be the basic tools of scientific and technological work, which persons are free to trade in and to build upon in the pursuit of among other things useful inventions. The majoritys simplistic approach of looking only to whether the claim reads on structure and ignoring the claimed invention or discovery for which a patent is sought will result in the awarding of patents for discoveries well beyond the scope of the patent law. Without particular claimed subject matter in mind, it is impossible to generalize with bright line rules the dividing line between what is in substance the invention or discovery of a useful application within Section 101 versus merely the discovery of an abstract idea or law of nature or principle outside Section 101. Phenomena of nature and abstract scientific and mathematical principles have always been excluded from the patent system. It is these purposes that are the subject matter of 35 U. However, the distinction between principle and practice was not observed in the Boards decision on Mr. The theme underlying the Boards rejection of the Alappat claims was that since mathematical steps were involved, and were performable by computer, Alappat was claiming a mathematical algorithm such as was held unpatentable in Gottschalk v. This operation requires several mathematical calculations that are performed with the aid of microelectronic circuitry, and can be performed by a digital computer. These boards preside over cases in which contract rights of private individuals and entities are directly pitted against the interests of the government. General Dynamics Corp., 828 F.2d 1356, 1364 (9th Cir. This contrasts sharply with the situation of the board of patent appeals on which the Commissioner acts simply as one member of the board. Section 7(b), but this is a far cry from a proviso that the board acts for the Commissioner, or the Commissioner acts through the board. Another important value is to avoid having the agency activities of investigation, prosecution, and adjudication combined in the same person or office. In those cases where a different panel of the Board is reconsidering an earlier panel decision, the Board is still the entity reexamining that earlier decision; it is simply doing so through a different panel. The Commissioner has an obligation to refuse to grant a patent if he believes that doing so would be contrary to law. however, should appropriately be left for another day. He stated them with such force and eloquence, and in my view they have such relevance to the issue we face today, that I repeat them as follows: It is necessary . Over the existence of matter itself he has no control . This is all that is actually done, or that can be done, namely, to cause the particles of matter existing in the universe to change their former places, by moving them, by muscular power or some other force. The technique of legal analysis employed by the dissent is certainly legitimate, and based on sound precedent. Must the rehearing Board be the full Board (which, per Judge Schall, must grant the rehearing), or can it be less than the full Board? In Benson, the invention was simply a way to solve a general mathematics problem; in Flook the invention was a way to obtain a number. Moreover, a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program or digital computer. In sum, section 101 is no bar to Alappat whether his invention is a machine which it is or a process which it employs. shall be heard by at least three members of the Board of Patent Appeals and Interferences, who shall be designated by the Commissioner. Because I think this court lacks jurisdiction to pass on the merits of this appeal, I express no views on the merits. 1992) (five-member panel); Ex parte Fujii, 13 USPQ2d 1073, 1074 (Bd.