DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
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.
Claim 15 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because claim 15 recites “A computer program product comprising instructions that, when read and executed by a processor operatively coupled to a cooking appliance comprising a cooking cavity, at least one heating element, and at least one steam generator, to perform the cooking method of claim 1”, but fails to positively recite any structure, and the language is simply defining how the instructions are intended to be used. The instant specification indicates that “a computer program product is provided, the computer program product comprising a memory, in particular a non-volatile memory, storing instructions that are suitable to provide, when implemented on a control unit as described before, an operational setup of a cooking appliance”, paragraph 0054. Thus, the instant specification contemplates “a computer program comprising computer instructions” absent any structural limitations.
The instant specification also indicates “A computer program product (16) comprising a memory, in particular a non-volatile memory, storing instructions that are suitable to provide, when implemented on a control unit (16) according to item 15, an operational setup of a cooking appliance”, paragraph 0189. However, while the instant application contemplates computer instructions stored on non-transitory computer readable media, it also provides the above noted example of a computer program comprising computer program code absent any structural limitations.
Thus, claim 15 recites a product (“a computer program product comprising instructions”) but it does not recite any structural limitations. As stated in MPEP 2106.03.I., claims that are not directed to any of the statutory categories include "[p]roducts that do not have a physical or tangible form, such as information (often referred to as "data per se") or a computer program per se (often referred to as "software per se") when claimed as a product without any structural recitations". In addition, “A claim whose “BRI” covers both statutory and non-statutory embodiments embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.”, see MPEP 2106.03 II.
The MPEP also states "As the courts' definitions of machines, manufactures and compositions of matter indicate, a product must have a physical or tangible form in order to fall within one of these statutory categories. Digitech, 758 F.3d at 1348, 111 USPQ2d at 1719." and "software expressed as code or a set of instructions detached from any medium is an idea without physical embodiment. See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449, 82 USPQ2d 1400, 1407 (2007); see also Benson, 409 U.S. 67, 175 USPQ2d 675 (An "idea" is not patent eligible). Thus, a product claim to a software program that does not also contain at least one structural limitation (such as a "means plus function" limitation) has no physical or tangible form, and thus does not fall within any statutory category.", see MPEP 2106.03 I.
Accordingly, claim 15 defines a software program that does not contain at least one structural limitation. Therefore, claim 15 should have been rejected under 35 U.S.C. 101 since it fails step 1 of eligibility, e.g., claim 15 is not within one of the four statutory categories, see MPEP 2106.03 I. and II.
It is suggested to add “non-transitory” in front of computer program to resolve this issue.
Allowable Subject Matter
Claims 1-14 and 16-19 are allowed.
Conclusion
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/THIEN S TRAN/Primary Examiner, Art Unit 3761 6/8/2026
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