Appeal 2006-2228
Application 10/231,678
involving the issue of whether intangible signals are patentable is presently
on appeal to the Federal Circuit: In re Nuijten, No. 06-1301.
A man-made signal represents coded information. A signal can be an
abstract quantity describing the information (numbers) or a measurable
physical quantity (e.g., the fluctuations of an electrical quantity, such as
voltage) containing information. See In re Walter, 618 F.2d 758, 770, 205
USPQ 397, 409 (CCPA 1980) (“The ‘signals’ processed by the inventions of
claims 10-12 may represent either physical quantities or abstract quantities;
the claims do not require one or the other”). Here we interpret the
“computer-readable signal bearing media” of claim 35 to include a time
varying electromagnetic signal instead of just an abstract quantity, such as a
data format.
The “computer-readable signal bearing media” of claim 35 is
considered to be nonstatutory subject matter because a “carrier wave” or a
“propagated signal” does not fall within one of the four statutory categories
of subject matter under 35 U.S.C. § 101.
The categories of statutory subject matter are “process, machine,
manufacture, or composition of matter.” 35 U.S.C. § 101. “[N]o patent is
available for a discovery, however useful, novel, and nonobvious, unless it
falls within one of the express categories of patentable subject matter of
35 U.S.C. § 101.” Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 483,
181 USPQ 673, 679 (1974).
A “process” is a series of acts and, since claims 35, 37, and 38 do not
recite acts, it is not a process. Compare the method of sharing data in
claims 20-22, which are not rejected.
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