In my recent post I reviewed the reasoning behind In re Nuijten, which came down to this, more or less:
“All signals within the scope of the claim do not themselves comprise some tangible article or commodity. This is particularly true when the signal is encoded on an electromagnetic carrier and transmitted through a vacuum—a medium that, by definition, is devoid of matter. Thus, we hold that Nuijten’s signals, standing alone, are not “manufacture[s]” under the meaning of that term in § 101.”
In my post, I concluded that as long as you accept the proposition that an electromagnetic signal has no mass you could at least possibly agree that it cannot be an article of manufacture. Well, can we really accept that an electromagnetic wave has no mass, and therefore incapable of being a tangible article, and in turn incapable of being a tangible article? No we can’t according to my friend the physicist and Einstein. In fact, Einstein would have found it downright silly to say that an “article” you can hold in your hand is any more tangible or has “mass” moreso than an electromagnetic wave. So, if we accept E=mc2 means an electromagnetic wave has a mass and is tangible, is it an “article of manufacture” under the Sectin 101? Well, if we look at at least one definition of “article” in a common dictionary it would seem like like. For example, most common dictionaries define “article” as “1. An individual thing or element of a class.” This language is pretty all-inclusive, so anything that is “manufactured” would seem to fall into it. So what does “manufacture” mean? One common definition is: “put together out of artificial or natural components or parts.”
So, strictly going off of dictionary definitions, and not reading any other constraints into the definition from legislative history or case law, an “article of manufacture” by definition is “a thing put together out of artificial or natural components or parts.” While we can parse “thing” further down, take my word for the fact “thing” is NOT defined to require tangibility or permance, so it can be just about anything.
Pulling this altogether then, is an electromagnetic signal “a thing put together out of artificial or natural components or parts.” Sure seems like it to me, especially since you can kill people with them. Moreover, is there any policy reason to preclude a novel. man-made electromagnetic signal from protection? Not that the In re Nuitjen case mentioned.
The position of the CAFC, and perhaps the Supreme Court (we’ll know on Monday) is analogous to that of the Catholic Church in the time of Galileo. In the face of overwhelming data, the Church refused to acknowledge that the earth revolved around the sun. It was stuck in the past, with a faith based belief that the sun revolved around the earth.
The CAFC is stuck in the past; that is in a Newtonian world where mass is represented by an apple falling from a tree. It is time for them to “get with the program.” The notion of the physical world was greatly expanded about 100 years ago by Einstein and his fellow physicists. Entire industries have been build upon principles of quantum mechanics. Instead of acknowledging this, the CAFC has chosen to compare signals to ghosts and other “paranormal” energy forces and render them unpatentable.
I predict that future generations will look back on this decision and either laugh or cry–not in a good way.