Appeal 2007-1089
Application 10/348,277
nontangible physical subject matter does not fall within any of the four
categories of § 101, which issue is presently on appeal to the Federal Circuit
in In re Nuijten, No. 06-1301 (argued February 2007). Accordingly, I agree
that claim 33 is directed to nonstatutory subject matter under § 101.
Claims 23 and 31
Claim 23 recites:
23. A method of editing media to generate new media comprising:
receiving a plurality of media objects, at least a portion of
which are annotated with metadata;
identifying the metadata;
combining a subset of the media objects to generate a new
media object, the combining being based at least in part upon the
identified metadata; and
embedding a first media object into a second media object.
Method claims always present the most trouble in § 101 analysis
because method steps are inherently more abstract than "machines,
manufactures, or compositions of matter." It is certain that not every series
of steps is a "process" under § 101. In my opinion, the "transformation of
physical subject matter" test is the test for a "process" under § 101, where
the physical subject matter may be tangible (a physical object or material) or
intangible (electrical signals or heat) as discussed in my concurring-in-part
and dissenting-in-part opinion in Lundgren, 76 USPQ2d at 1398-1401.
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