In Ex Parte Cromer et al, No. 2009-012992 (BPAI Jan. 12, 2012), the appellants' invention related to methods, systems and computer program products that allow a client device to recognize a Wireless Broadcast Storm During Active Scan Association (WBSDAASA). On recognition of a WBSDAASA the invention initiated an alternate connection scheme with the access point to avoid the access point live-lock caused by the WBSDAASA.
Claim 12, for example, read as follows:
12. A computer program product, residing on a computer usable storage medium, comprising:In other words, almost a Beauregard claim, but not quite.
program code configured to monitor, when executed by a client device, for a Wireless Broadcast Storm During Active Scan Association (WBSDAASA); and
program code configured to, upon detecting the WBSDAASA when executed by the client device, use an alternate connection scheme to wirelessly connect the client device to an access point of a wireless network.
The appellants, Lenovo Inc, pointed out that they amended claim 12 during prosecution to replace the term "computer usable medium" with "computer usable storage medium". They also deleted the reference in the specification to "communication media, such as computer and telephone networks including Ethernet".
So, said the appellants, the computer usable storage medium of claim 12 doesn't cover signals under transmission. Signals are not regarded to be patentable subject matter. But they are not claiming signals here.
The Board had a different view. The Judges considered that the term "computer usable storage medium" included programs delivered to a data storage system by a variety of signal-bearing media.
The smoking gun was a passage from the appellants' specification:
'Programs defining functions on the present invention can be delivered to a data storage system or a computer system via a variety of signal-bearing media, which include, without limitation, non-writable storage media (eg. CD-ROM), writable storage media (eg. a floppy diskette, hard disk drive, read/write CD ROM, optical media).'The claim was held to encompass both statutory subject matter (CD-ROM, hard disk drive, etc) and non-statutory subject matter (ie. signal bearing transmission waves) which carry data received via different signal-bearing media such as "transitory" or propagated signals.
The Board referred to the USPTO guidelines which recommend adding the limitation "non-transitory" to the claim.
The invention as claimed was found to be not limited to non-transitory subject matter. The examiner's decision rejecting claim 12 was affirmed.
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