Appeal No. 1998-2474
Application NO. 08/578,325
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 15
United States Patent and Trademark Office
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BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES
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Ex parte FRANK R. BONCZYK
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Appeal No. 1998-2474
Application No. 08/578,325
MAILED
JUL 31 2000
PAT.& T.M Office
Board of Patent Appeals
and Interferences
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ON BRIEF
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Before THOMAS, KRASS and GROSS, Administrative Patent Judges
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
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This is a decision on appeal from the final rejection of claims 1,9, 11, 12 and 14. Claims 15 and 19 stand objected to as being improper multiply dependent claims.
The invention is entitled "Fabricated Energy" and independent claim 1 is reproduced as follows:
1. A fabricated energy structure for a uniform energy of the type having a single nature separated to oppose itself by a precise alternate time duration of existence that creates the dual nature for supporting and extending the Fabricated energy comprising a unitary structure of a single Base Particle (Bp) set to a time opposed opposite (Bp') of itself that together provides the functions of energy molded from decayed energy from the 'The Unified PO Realm' and including a lattice strand portion in the form of a consequential open strip adapted to curve in attempt to bind at the ends in a trivial or nontrivial bundle to form the ring strand, producing a trivial or nontrivial structure, that will act as an energy root stock, said strand portion including a symbiotic mass assembly portion (rib) at one end thereof as residual, and an integral orthogonal stem portion extending from said strand portion to support and structure one (+) and the other (-) energy nature in the elevated position to monitor, interpret, adapt, maintain other neighboring energy structures and to duplicate of itself.
No references are relied on by the examiner.
Claims 1, 9, 11, 12 and 14 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
Reference is made to the briefs and answer for the respective positions of appellant and the examiner.
OPINION
We affirm.
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At the outset, we note that appellant is prosecuting this application pro se, without the assistance of a patent attorney or agent. While this, of course, is appellant's right and we would like to direct and aid such appellants wherever and whenever we can in making the appeals process easier and more understandable, we are, frankly, at a loss as to how to advise appellant in this case. We have reviewed the instant specification, as well as the entire record before us, including the arguments of appellant and the examiner and we cannot determine what comprises appellant's invention.
In general, during the patent process, a review of an application is made to determine, first, if a claimed invention is of the type which can, under statute (35 U.S.C. § 101), be patented. If the invention belongs to one of the statutory classes of invention, one would look next to see if the claimed invention is in accordance with the dictates of 35 U.S.C. § 112. That is, is there an adequate written description of the invention and would the skilled artisan have been enabled by the description to make and use the claimed invention? Further, a determination is made as to whether an applicant has described the best mode of practicing the invention and as to whether the claim language is sufficiently clear to particularly point out and distinctly claim that which an applicant believes is his/her invention. If the claimed invention passes must under 35 U.S.C. § 112, a determination is made as to whether the claimed invention runs afoul of the prior art under 35 U.S.C. §§ 102 or 103; that is, does the claimed invention infringe upon what is in the public domain?
In the instant case, the examiner rejected claims 1, 9, 11, 12 and 14 under 35 U.S.C. § 101 as being directed to non-statutory subject matter because they are "directed to a theoretical energy model." The examiner equated such a model to "scientific principles or descriptions of naturally occurring articles" and pointed out that the claims do not fall into one of the prescribed categories of invention under 35
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U.S.C. § 101, viz., a process, a machine, an article of manufacture, compositions of matter or an improvement thereof. [See Paper No. 2; Aug. 8, 1996]. In the final rejection, the examiner says that "the claims are directed to a new way of describing something which already exists in nature." In response to appellant's principal brief, the examiner states that he "was mistaken in understanding this invention as a model of a naturally occurring article; however, the invention is still claimed as a conceptual model completely divorced from any physical structure."
For his part, appellant's responses in both the principal and reply briefs are of no help in ascertaining just what the claimed invention comprises and into which statutory category the invention falls. The principal brief rambles on about "structures;" following the function of energy; that the disclosure comprises both existence and non-existence and that there is "no peer in science to date that can co-ordinate the function of energy to create the applicant's structure" [page 7]. Appellant asks [principal brief-page6] "[w]here does nonexistence exist naturally in existence?" At page 7 of the principal brief, appellant states, "[t]he labyrinth of free parameters that weaken conventional physics understanding disqualifies any pragmatic conviction by anyone to evoke what does and what does not exist naturally in nature, in order to pass judgement." The reply brief makes statements about the Hubble telescope and of "the resultant principles of energy utilized in the invention on a Galactic scale" being "indicative of the invention's connection to physical structures" [reply brief-page 4].
In all honesty, though we have tried mightily, from appellant's arguments and from the instant disclosure, to comprehend what appellant regards as his invention, we simply do not understand the nature of the invention. From the amendment filed Nov. 7, 1996 (Paper No.3), appellant identifies the invention as a composition of matter, stating that the invention "is a structured 'Fabrication of Energy',
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therefore is a prescribed subsequent 'Composition of Matter'." However, we are at a loss to find any recited "composition of matter" in the instant claims. It is instructive to look at dependent claims 14, 15 and 19 which further define what is recited in the independent claim as "life structures" or "biogenic structures" or "computer timing circuits, computer codes, computer algorithms, and or computer programming" or "fixed and or variable Symbols, Alpha/Numeric, Electronic/Biotic, Audio/Visual, however structured…" These recitations clearly do not sound like compositions of matter.
Appellant's arguments in the brief, though a bit philosophical, circuitous and generally obfuscatory, appear to indicate that the invention is type of "structure," rather than a composition of matter. However, it is not clear to us what kind of "structure" is intended and we agree with the examiner that the invention appears to constitute a "conceptual model completely divorced from any physical structure" [answer-page 3]. We note that the original disclosure described a "model" and a later amendment changed this term to "structure" but no such "structure" was adequately identified.
Independent claim 1 recites a "fabricated energy structure" but it is unclear what structure is intended or what "energy" is being referenced. The term, "The Unified PO Realm" is undefined and unidentified.The description of "a lattice strand" and the binding at the ends "in a trivial or nontrivial bundle to form the ring strand: sounds like some kind of chemical method being performed but appellant never identifies the category of the invention being a "process". Yet dependent claims, reciting "life structures" and computer structures appear to take the invention out of the category of some chemical process.
The description of the instant invention, the claims and appellant's arguments are so confusing and general that we
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cannot ascertain into what statutory category of invention the instant invention falls. According, we agree with the examiner that the invention appears to be conceptual model completely divorced from any physical structure or practical application and, as such, we sill sustain the rejection of the claims under 35 U.S.C. § 101.
While we make no new grounds of rejection herein, we also note that the description and claim language describing the invention are so poor, in our opinion, that even assuming, arguendo, a proper statutory category could be found for this invention, serious questions arise as to the adequacy of the instant disclosure to enable the skilled artisan to make and use the claimed invention (35 U.S.C. § 112, first paragraph) and as to whether appellant has particularly pointed out and distinctly claimed that which he regards as his invention (35 U.S.C. § 112, second paragraph).
The examiner's decision is affirmed.
No time period for taking any subsequent action in connection with this apppeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
"s/JAMES D. THOMAS". )))))))))
Administrative Patent Judge ))))))))
"s/ERROL A. KRASS". )))))))))))) BOARD OF PATENT
Administrative Patent Judge ))))))))APPEALS AND
"s/ANITA PELLMAN GROSS".)INTERFERENCES
Administrative Patent Judge ))))))))
VSH
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