A Signal is Not Patentable Subject Matter

In Re Nuijten, [2006-1371] (September 20, 2007)[GAJARSA, Linn, Moore] The Federal Circuit affirmed the PTO rejection of claims on the ground that a signal was not patentble subject matter.
SIGNIFICANCE: A signal is not patentable subject matter.
BRIEF: Nuijten’s patent application discloses a technique for reducing distortion induced by the introduction of "watermarks" into signals. The claims on appeal cover transitory electrical and electromagnetic signals propagating through some medium, such as wires, air, or a vacuum. Those types of signals are not encompassed by any of the four enumerated statutory categories: "process, machine, manufacture, or composition of matter." The Federal Circuit examined each of the statutory categories. The Federal Circuit said that the Supreme Court and this court have consistently interpreted the statutory term "process" to require action, and concluded that there was not action. The Federal Circuit said that the Supreme Court has defined the term "machine" as "a concrete thing, consisting of parts, or of certain devices and combination of devices," and concluded that a signal was not a machine. As to the third category, manufactures, the Federal Circuit found the question "more difficult". The Federal Circuited noted that signals are man-made, in the sense of having been encoded, generated, and transmitted by artificial means. However, the Federal Circuit said that artificiality is insufficient by itself to render something a "manufacture." The term is used in the statute in its noun form, and therefore refers to "articles" resulting from the process of manufacture. These definitions indicate that "articles of manufacture" are tangible articles or commodities. A transient electric or electromagnetic transmission does not fit within that definition. The Federal Circuit noted that applicant conceded that the claimed signals were not compositions of matter. Further, the Federal Circuited noted that the Supreme Court has defined "composition of matter" to mean "all compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids" and concluded that a signal comprising a fluctuation in electric potential or in electromagnetic fields is not a "chemical union," nor a gas, fluid, powder, or solid. Nuijten’s signals are not "composition[s] of matter."
The Federal Circuit sided with Nuijten on one issue -- the found that in order to be a "signal," as required by the claim, some carrier upon which the information is embedded is required. Thus some physical form for the signal is required, but any form will do, so long as a recipient can understand the message—the nature of the signal’s physical carrier is totally irrelevant to the claims at issue.