CITE:  32 F.3d 1579
CMON:  August 1994
PLAIN: In re Lowry, Edward
DEFND: United States Patent and Trademark Office
COURT: Court of Appeals Federal Circuit
DATE:  August 26, 1994


Appeal from the U.S. Patent and Trademark Office, Board of Patent Appeals
and Interferences.

Patent application of Edward S. Lowry, serial no. 07/181,105 (data
processing system having a data structure with a single, simple primitive).
From decision upholding rejection of claims under 35 USC 102(e) and 103,
applicant appeals.


JUDGE: Rader, Judge
Before Skelton, senior circuit judge, and Rich and Rader, circuit judges.

  A data structure in memory is a physical entity and is patentable.


Edward S. Lowry appeals the U.S. Patent and Trademark Office Board of Patent
Appeals and Interferences' rejection of all claims in Patent Application
Serial No. 07/181,105. On July 30, 1993, the Board reversed the rejection
of claims 1 through 5 under 35 U.S.C. Section 101 (1988). The Board also
affirmed the rejection of claims 1 through 19 under 35 U.S.C. Section 103
(1988) and claims 20 through 29 under 35 U.S.C. Section 102(e) (1988).

This court reverses.


Lowry's patent application -- "Data Processing System Having a Data Structure
with a Single, Simple Primitive" -- relates to the storage, use, and
management of information residing in a memory. The PTO does not dispute
the features and advantages of Lowry's claimed invention. The invention
provides an efficient, flexible method of organizing stored data in a
computer memory.

A memory stores data according to a particular order or arrangement.
Application programs use stored data to perform specified functions. A
data model provides the framework for organizing and representing information
used by an application program. Data models define permissible data
structures -- organizational structures imposed upon the data used by
the application program -- compatible with particular data processing
systems. Data structures are the physical implementation of a data model's
organization of the data. Data structures are often shared by more than one
application program.

The prior art contains data models and data structures. Prior art data models
are generally one of two kinds: functionally expressive or structurally
expressive data models. Functionally expressive data models enable complex
nested operations using large blocks of data. These data models, however,
are limited to a narrow class of applications and generally require more
complex interfaces to functionality. Structurally expressive data models,
on the other hand, define more varied data structures capable of
representing accurately complex information. These data models, however,
make complex nested operations on large blocks of data quite difficult.

Lowry's invention seeks to optimize both structural and functional
expressiveness. Lowry discloses a data structure accessible by many
different application programs. Lowry's data structure is based upon
the "Attributive data model".  The Attributive data model represents
complex information in terms of attributes and relationships between
attributes. According to Lowry's specification, "[a]n attribute expresses
the idea that one thing is attributed to another thing".  Thus, the
Attributive data model capitalizes on the concept that a database is
a collection of attributions, whereby information is represented in
terms of its characteristics and relationships to other information.

In accordance with the Attributive data model, Lowry's data structure
comprises a plurality of attribute data objects (ADOs) stored in memory.
An ADO is a single primitive data element "compris[ing] sequences of bits
which are stored in the memory as electrical (or magnetic) signals that
represent information." It contains information used by the application
program and information regarding its relationship with other ADOs.  Lowry
asserts that his data structure is functionally expressive by virtue of
its representation of information in terms of attributes.  Lowry also
states that "[s]tructural expressiveness is achieved by making that
primitive data object extremely simple and allowing for highly
unconstrained interconnections between attribute instances".

According to the claimed invention, ADOs have both hierarchical and
non-hierarchical interrelationships. A few specific rules govern these
relationships.  Because the claimed invention uses single ADOs governed
by simple organizational rules, Lowry asserts that it may flexibly and
accurately represent complex objects and relationships. The hierarchical
relationships form a conceptual pyramidal structure. Hierarchical
correlations describe "holding" or "being held" relationships.  An ADO
can "hold" one or more other ADOs. Each ADO, however, can "be held" by
only one other ADO.  Thus, while capable of holding many others, an ADO
can be held by only one other ADO.  One ADO, called the apex ADO, holds
at least one other ADO but is held by no other ADO. This apex ADO is the
only ADO that lacks a being-held relationship.  From the apex ADO, the
hierarchical relationships fan out in a pyramidal structure.

ADOs also have non-hierarchical relationships. These are essentially
"pointing" relationships between ADOs. There are two basic types of
ADOs: (1) element data objects, which refer to only themselves, and
(2) relation data objects, which refer to one other ADO, called a
referent ADO.

A referent ADO is merely an ADO that a relation data object refers to.
Each ADO can be a referent ADO for more than one ADO. According to
Lowry's specification, this arrangement of hierarchically and
non-hierarchically related single primitive ADOs facilitates software
operations such as retrieval, addition, and removal of information in
the data structure.

Claims 1 through 5 claim a memory containing a stored data structure.
Claim 1 is representative:

1. A memory for storing data for access by an application program being
executed on a data processing system, comprising:

a data structure stored in said memory, said data structure including
information resident in a database used by said application program and

a plurality of attribute data objects stored in said memory, each of said
attribute data objects containing different information from said database;

a single holder attribute data object for each of said attribute data objects, each of said holder attribute data objects being one of said plurality of
attribute data objects, a being-held relationship existing between each
attribute data object and its holder attribute data object, and each of
said attribute data objects having a being-held relationship with only a
single other attribute data object, thereby establishing a hierarchy of
said plurality of attribute data objects;

a referent attribute data object for at least one of said attribute data
objects, said referent attribute data object being nonhierarchically related
to a holder attribute data object for the same at least one of said attribute
data objects and also being one of said plurality of attribute data objects,
attribute data objects for which there exist only holder attribute data
objects being called element data objects, and attribute data objects for
which there also exist referent attribute data objects being called
relation data objects;  and 

an apex data object stored in said memory and having no being-held
relationship with any of said attribute data objects, however, at least
one of said attribute data objects having a being-held relationship with
said apex data object.

Claims 6 through 19 claim a data processing system executing an application
program, containing a database, a central processing unit (CPU) means for
processing the application program, and a memory means for holding the
claimed data structure. Claims 20-23, 25, and 28 specify methods of
accessing, creating, adding, and erasing ADOs within the data structure.
Claim 24 specifies a method for creating a data structure. Claims 26, 27,
and 29 claim methods of creating and erasing non-hierarchical relationships
between ADOs and referent ADOs.


The examiner rejected claims 1 through 5 under 35 U.S.C. Section 101 as
non-statutory subject matter. The examiner also rejected claims 1 through 19
under 35 U.S.C. Section 103 as obvious in light of U.S. Patent No. 4,774,661
(Kumpati). Finally, the examiner rejected claims 20 through 29 under
35 U.S.C.  Section 102(e) as anticipated by Kumpati.

The Board reversed the 35 U.S.C. Section 101 rejection. The Board found
that claims l through 5, directed to a memory containing stored information,
as a whole, recited an article of manufacture. The Board concluded that the
invention claimed in claims 1 through 5 was statutory subject matter.

When evaluating patentability under sections 102 and 103, the Board failed
to give patentable weight to the claimed data structure. The Board stated
that the claims on appeal specify relationships between the ADOs stored in
the memory. The Board analogized Lowry's data structure comprised of ADOs
to printed matter and relied on this statement from In re Gulack,
703 F.2d 1381 (Fed. Cir. 1983): 

   Where the printed matter is not functionally related to the substrate,
   the printed matter will not distinguish the invention from the prior
   art in terms of patentability. Although the printed matter must be
   considered, in that situation it may not be entitled to patentable
   weight. Id. at 1385.

In Gulack, this court concluded that "the critical question is whether
there exists any new and unobvious functional relationship between the
printed matter and the substrate."  Id. at 1386 (footnote omitted). The
Board therefore framed the question as whether a new, nonobvious functional
relationship exists between the printed matter (data structure with ADOs)
and the substrate (memory).  The Board determined that Lowry did not show
such a functional relationship. Thus, the Board agreed with the examiner
that the data structure could not distinguish the claimed invention from
the prior art.  The Board held that Kumpati, disclosing a CPU using a
memory and containing stored data in a data structure, rendered all claims
either anticipated or obvious. Lowry appealed.


This court reviews the Board's determination of obviousness de novo.
In re Woodruff, 919 F.2d 1575, 1577 (Fed. Cir. 1990). This court reviews
factual findings underlying the obviousness determination for clear error.
Id.  Whether a prior art reference anticipates the claimed invention is
a question of fact reviewed under the clearly erroneous standard.
In re King, 801 F.2d 1324, 1326 (Fed. Cir. 1986).

The Patent and Trademark Office (PTO) must consider all claim limitations
when determining patentability of an invention over the prior art.  Gulack,
703 F.2d at 1385.  The PTO may not disregard claim limitations comprised of
printed matter.  See Gulack, 703 F.2d at 1384; see also Diamond v. Diehr,
450 U.S. 175, 191 (1981).  This court in Gulack, however, would not give
patentable weight to printed matter absent a new and unobvious functional
relationship between the printed matter and the substrate. The Board in
this case determined that Lowry's data structures were analogous to printed
matter and therefore the specific features of the constituent ADOs deserved
no patentable weight without a functional printed matter-substrate
relationship. Finding no such functional relationship between the ADOs
and the memory, the Board refused to consider the specific data structure

As an initial matter, this court notes that Gulack cautioned against a
liberal use of "printed matter rejections" under section 103:

   A "printed matter rejection" under Section 103 stands on questionable
   legal and logical footing. Standing alone, the description of an element
   of the invention as printed matter tells nothing about the differences
   between the invention and the prior art or about whether that invention
   was suggested by the prior art. . . . [The Court of Customs and Patent
   Appeals], notably weary of reiterating this point, clearly stated that
   printed matter may well constitute structural limitations upon which
   patentability can be predicated. Gulack, 703 F.2d at 1385 n.8.

Despite this cautioning, the Board erroneously extended a printed matter
rejection under sections 102 and 103 to a new field in this case, which
involves information stored in a memory. This case, moreover, is
distinguishable from the printed matter cases. The printed matter
cases "dealt with claims defining as the invention certain novel
arrangements of printed lines or characters, useful and intelligible only
to the human mind."  In re Bernhart, 417 F.2d 1395, 1399 (CCPA 1969). The
printed matter cases have no factual relevance where "the invention as
defined by the claims requires that the information be processed not by
the mind but by a machine, the computer."  Id. (emphasis in original).
Lowry's data structures, which according to Lowry greatly facilitate
data management by data processing systems, are processed by a machine.
Indeed, they are not accessible other than through sophisticated software
systems. The printed matter cases have no factual relevance here.

Nor are the data structures analogous to printed matter. Lowry's ADOs do
not represent merely underlying data in a database. ADOs contain both
information used by application programs and information regarding their
physical interrelationships within a memory.  Lowry's claims dictate how
application programs manage information.  Thus, Lowry's claims define
functional characteristics of the memory.

Contrary to the PTO's assertion, Lowry does not claim merely the information
content of a memory. Lowry's data structures, while including data resident
in a database, depend only functionally on information content. While the
information content affects the exact sequence of bits stored in accordance
with Lowry's data structures, the claims require specific electronic
structural elements which impart a physical organization on the information
stored in memory. Lowry's invention manages information.  As Lowry notes,
the data structures provide increased computing efficiency.

Indeed, Lowry does not seek to patent the Attributive data model in the
abstract. Nor does he seek to patent the content of information resident
in a database. Rather, Lowry's data structures impose a physical
organization on the data.

In Lowry's invention, the stored data adopt no physical "structure" per se.
Rather, the stored data exist as a collection of bits having information
about relationships between the ADOs. Yet this is the essence of electronic
structure. In Bernhart, this court's predecessor noted:

   There is one further rationale used by both the board and the examiner,
   namely, that the provision of new signals to be stored by the computer
   does not make it a new machine, i.e. it is structurally the same, no
   matter how new, useful and unobvious the result. . . . To this question
   we say that if a machine is programmed in a certain new and unobvious
   way, it is physically different from the machine without that program;
   its memory elements are differently arranged.  The fact that these
   physical changes are invisible to the eye should not tempt us to
   conclude that the machine has not been changed.  Bernhart, 417 F.2d
   at 1400 (emphasis added).

More than mere abstraction, the data structures are specific electrical
or magnetic structural elements in a memory. According to Lowry, the data
structures provide tangible benefits: data stored in accordance with the
claimed data structures are more easily accessed, stored, and erased.
Lowry further notes that, unlike prior art data structures, Lowry's data
structures simultaneously represent complex data accurately and enable
powerful nested operations. In short, Lowry's data structures are physical
entities that provide increased efficiency in computer operation. They are
not analogous to printed matter. The Board is not at liberty to ignore
such limitations.

Even assuming, arguendo, that data objects and data structures are
analogous to printed matter, the Board erred in its reliance on Gulack.
As part of its burden to establish a prima facie case of obviousness,
see In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992), the burden of
establishing the absence of a novel, nonobvious functional relationship
rests with the PTO. "If examination at the initial stage does not produce
a prima facie case of unpatentability, then without more the applicant
is entitled to grant of the patent."  Id. The PTO did not establish that
the ADOs, within the context of the entire claims, lack a new and
nonobvious functional relationship with the memory.  The ADOs follow a
particular sequence that enables more efficient data processing operations
on stored data.  The ADOs facilitate addition, deletion, and modification
of information stored in the memory. In sum, the ADO's perform a function.
Gulack requires no more. See Gulack, 703 F.2d at 1386.

With the foregoing in mind, this court now turns to the specific prior art
rejections.  The Board rejected claims 1 through 19 under section 103 as
obvious over Kumpati.  The Board found that claims 20-29 were anticipated
by Kumpati. Claims 1 through 19 include a memory, comprising the claimed
data structure, for storing data for access by an application program.
Claims 20 through 29 describe methods of performing data management
operations with respect to the claimed data structure.

The Kumpati patent, entitled "Database Management System with Active Data
Dictionary," discloses a database management system containing an active
data dictionary that the user can access and modify.  Kumpati's data
dictionary contains information about the structure and usage of the
data stored in the database management system.

Kumpati discloses a data model within a database management system complete
with hierarchical and relational interrelationships. Kumpati further defines
an "attribute" as a "function that maps an entity set or relationship set
into one or more value sets".  A value set, in turn, "further identifies
(or defines) the entity by populating these attributes with specific
items of data which define these characteristics".

Kumpati does not, however, disclose Lowry's ADOs and their specific
hierarchical and non-hierarchical relationships.  More specifically,
Kumpati does not disclose the claimed pyramidal arrangement of
hierarchically arranged ADOs, complete with apex ADO.  Kumpati's
relationship sets are different from Lowry's relation data objects,
having non-hierarchical relationships with other ADOs. Neither are
Kumpati's "attributes," performing a mapping function, equivalent to
Lowry's ADOs, containing information used by the application program
as well as information regarding its interrelationships with other ADOs.

Lowry's claimed invention involves an organization of information and
its interrelationships which Kumpati neither discloses nor suggests.
Kumpati also does not render Lowry's claims obvious. The Board erred
in holding otherwise. Claims 1 through 19 are, as a whole, not obvious
in light of Kumpati.

Because Kumpati does not contain all limitations of claims 20 through 29,
the Board erred in holding these claims anticipated by Kumpati. Therefore,
this court reverses the section 102 rejection of claims 20 through 29.


The Board erred by denying patentable weight to Lowry's data structure
limitations. This court reverses the Board's determination that claims
1 through 19 are obvious. This court also reverses the Board's decision
that claims 20 through 29 are anticipated under section 102.