Archive for the ‘Section 101’ Category

Highlights of the New USPTO Section 101 Guidance

Thursday, July 29th, 2010

As I noted earlier this week, the USPTO has now published new guidance on how to determine patent-eligibility under 35 U.S.C. 101 in view of the opinion by the Supreme Court in Bilski v. Kappos, 561 U.S. ___ (2010).  (USPTO Interim Guidelines for Patent Eligibility) Interestingly, the guidance is specifically for method claims and presumably does apply to the other categories of Section 101 subject matter — machines, manufactures, and compositions of matter:  “This Interim Bilski Guidance provides factors to consider in determining subject matter eligibility of method claims in view of the abstract idea exception.”

In addition, the USPTO notes the guidance “does not constitute substantive rule making and hence does not have the force and effect of law” and that “any perceived failure by Office personnel to follow this guidance is neither appealable nor petitionable.”  As such, rejections will continue to be based upon the substantive law, and it is these rejections that are appealable.

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USPTO PUBLISHES NEW GUIDANCE ON PATENT ELIGIBILITY IN LIGHT OF BILSKI CASE

Tuesday, July 27th, 2010

The USPTO has published its new guidance on patent eligibility in light of the US Supreme Court’s Bilski decision.  The interim guidelines are found in a notice in the Federal Register titled “Interim Guidance for Determining Subject Matter Eligibility for Process Claims in view of Bilski v. Kappos.”  Public comments are invited by September 27.  I will post comments on these new interim guidelines soon.

USPTO Interim Guidelines for Patent Eligibility

Fixing Claim 1 of Ex Parte Birger

Thursday, July 22nd, 2010

In my last post I discussed how claim 1 in the Ex Parte Birger case had a number of arguably “abstract” elements.  I was wondering how difficult it might be be re-draft the claim to eliminate some of the abstract elements or at least introduce enough machine components to get it through the Section 101 keyhole, so I took a shot at it.   I did not have time to undertake a complete restructuring of the claim, but I think I did manage to buck up its machine components.  Also, I did not have time to study the disclosure to make sure the substance of the claim is completely correct, so please forgive any errors in that respect.  Most interestingly, in digging into this claim just a bit I realized that it was a struggle to claim a machine or process in concrete terms when trying to claim an invention that is described or defined in terms of an abstract “model” such as the OSI model and the Internet Protocol Suite (TCP/IP) model, wherein the invention is defined for example in terms of “layers” and “protocols” and “processes” that do not include a specific physical layer/structure.  Also note that I am not sure the proposed claim amendments are supported by Birger’s disclosure.

Here is my shot at a more “machine-like” form of claim 1 from Ex Parte Birger:

1. (Amended) A method for communicating between a first and second electronic device over a computer network, the method comprising the first electronic device using a machine-readable global address of the second device to communicate with the second endpoint, wherein:

the machine-readable global address includes machine-readable data specifying a protocol, a network identifier, and an address meaningful for the combination of the protocol and a network identified by the network identifier, wherein the protocol defines a process used to exchange information between electronic devices;

an application comprising machine-readable computer instructions executable on a computing device to send machine-readable messages directed to the second device through an identity-based communication layer that is situated between a network layer and an application layer, the messages being independent of the protocol, wherein the communication layer, network layer and application layer each comprise at least one computer-implemented process to communicate machine-readable data over the network; and

the identity-based communication layer including at least one process for transmitting the machine-readable messages to the second device using the protocol, the network, and the address specified by the global address.

Ex Parte Birger: Form over substance, or not?

Monday, July 19th, 2010

In Ex Parte Birger the BPAI has knocked out another set of claims under Section 101.  (See link below for a copy of some selected papers from the case.)  For example claim 1, which was singled out as “representative” by the Board, was rejected for a litany of reasons under 101 (“claimed invention is directed to software per se, abstract ideas, abstract concepts, and the like, including data per se, data items, messages, addresses, identities, data structures, software layers, software applications, software protocols, and the abstract intellectual processes associated with them within the claims on appeal”).   Generally, I see the Board’s point, but its not quite an open and shut case — I can see that some of the claim limitations are more conceptual/abstract in nature than “machine-like”, but on the other hand some of the components are arguably more machine-like in nature.  See claim 1 below with my comments about whether the element is “abstract” or “machine” in brackets: 

1. A method for communicating [abstract] between two endpoints [abstract unless defined as apparatus in specification] connected to a network [machine], the method comprising having a first endpoint use a global address [again, if “global address” is interpreted as electronic/machine-readable data, then this is arguably “tangible data”, but if not interpreted as electronic data, then it can be “abstract data”] of a second endpoint to communicate [again, if communication is deemed electronic over a “machine” network, then “communication” can be viewed as tangible v. abstract] with the second endpoint, wherein:

the global address specifies a protocol [could be viewed as “tangible” if it is defined in specification as a tangible machine-readable data sequence or organization, or abstract if not], a network identifier [same analysis as for “global address”], and an address meaningful for the combination of the protocol and a network identified by the network identifier,

an application [this is abstract if it is not specified to be executing on a computer] sends messages [these could be viewed as tangible electronic data traffice] directed to the second endpoint through an identity-based communication layer [could either be viewed as abstract or “tangible data” depending on how described] that is situated between a network layer [could be either machine or abstract depending on how disclosed] and an application layer [again, same thing], the messages being independent of the protocol, and

the identity-based communication layer transmits the messages to the second endpoint using the protocol, the network, and the address specified by the global address [again, if “message” is interpreted as phyiscal, electronic data, and the network as a “machine”, then this should be not be abstract].

I will have more analysis on this later, but for now I think attorneys should take care to describe and claim inventions such as that described in Birger’s claim 1 from the point of view of describing the electronic operation of machine/circuit components as opposed to describing the invention from a conceptual software perspective wherein the machine operation is largely opaque to the programmer or user.  In this case, I think the claims are lot more abstract/conceptual than concrete, machine-like, at least if you give the suspect claim terms their more abstract meanings.  I think the problem that many of us are going to have is reverting back to describing and claiming inventions at this level of operational detail having been able to use the more conceptual block diagrams and flow charts we are used to under a less exacting application of Section 101’s prohibition on abstract inventions.

Ex Parte Birger — Applications and Briefs

Benson and Flook Revisited: The Crazy Aunts in the Basement are Back at the Dinner Table!

Wednesday, July 7th, 2010

Ok, its been over a week since the “seminal” In re Bilski decision, and the reality is slowly sinking in: crazy Aunt Benson (Gottschalk v. Benson) and crazy Aunt Flook (Parker v. Flook) are out of the basement and back at the dinner table!  Yes, these decisions, which many patent attorneys had hoped would fade in importance against more recent and better reasoned opinions, are now front and center again.  Cited approvingly as “guideposts” for determining what is and isn’t statutory subject matter under Section 101, the Court again invites us to follow the principles set forth in these decisions in separating the unpatentable from the patentable under Section 101.

The only problem is that I have never been able to fully grasp or follow the logic used in these cases.  Today I will take a look at claim 8 in the Benson case:

“The method of converting signals from binary coded decimal form into binary which comprises the steps of

 (1) storing the binary coded decimal signals in a reentrant shift register,

 (2) shifting the signals to the right by at least three places, until there is a binary `1′ in the second position of said register,

 (3) masking out said binary `1′ in said second position of said register,

 (4) adding a binary `1′ to the first position of said register,

 (5) shifting the signals to the left by two positions,   

 (6) adding a `1′ to said first position, and

 (7) shifting the signals to the right by at least three positions in preparation for a succeeding binary `1′ in the second position of said register.”

It’s unquestionable that Benson’s claim 8 passes the the machine or transformation (MOT) test, as the claim clearly requires the use of a machine (a reentrant shift register) to convert signals from binary coded decimal form into binary form.  Furthermore, it is clearly a “process” under the broad definition given to that category of Section 101 subject matter in Bilski.  The Benson Court killed it, however, because “[t]he mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.”

And this is where I struggle with the logic for  a number of reasons:

1.  Why should it matter that the only known practical use of the process is on a digital computer?  The process of claim 8, as limited to implementation in a digital computer, was an improvement to the data processing arts and did not block the use of BCD on computers to represent data, or even conversion between BCD and binary on a computer by other processes. 

2.  If the process itself was invented to improve the utility of a digital computer — indeed a very specific type of machine, why should the improvement be unpatentable because its only known practical use is on that very specific type of machine?   

3.  If the objectionable algorithm had been in use for a thousand years to solve a multitude of problems with paper and pencil before its application to a digital computer was discovered, would it make a difference?  Or, put another way, if there was only one digital computer in the world, but one-hundred paper and pencil uses for the algorithm in question, would it then be acceptable to patent the process as restricted to the computer? 

4.  If the machine claimed in Benson was a mechanical device for performing the process of conversion, would that be patentable because it was “impractical” compared to a digital computer?  If the mechanical device was the only known “computer” at the time the process was invented, would this device be preempted as it was the only practical machine for implementing the process? 

5. If Benson had invented the computer itself, and sought to claim the process for conversion of BCD to binary contemporaneously therewith, would the claim be allowable because the machine itself was novel?

6. If other techniques for converting binary coded decimal to binary signals existed, then would a patent on the algorithm truly preempt conversion of binary coded decimal to binary in a digital computer?  Wouldn’t this merely be preemption of one machine-process for doing the conversion?

I think it is clear that the “preemption” rule enunciated in Benson is at the very least is highly dependent on assumptions about the technological environment “external” to the invention, making it a slippery concept to apply with any degree of consistency, and indeed a rule that potentially gives different results at different points in the timeline of the technological environment.

In one of my next postings I will try to decipher (or not) how the application of a mathematical algorithm to the rubber curing apparatus/process in Diamond v. Diehr was different than the application of the mathematical algorithms in Flook and Benson, such that the former did not wholly preempt all practical uses of the algorithm but the latter did.

USPTO Issues Guidelines in View of Bilski

Tuesday, June 29th, 2010

Interim Guidelines – Bilski

Jim Hallenbeck provided me with these direction to Examiners is to use the Machine or Transformation test to reject method claims unless it is clear the claims are directed to more than an abstract idea.

In re Bilski — “So You’re Telling Me There is a Chance…”

Tuesday, June 29th, 2010

While the initial reaction to In re Bilski was one of relief that the Court did not put an outright kabosh on business method patents, the reality may be that the majority opinion differs little in practical effect than the Stevens dissent.  In fact, the “hope” it leaves for protecting business methods reminds me a lot of one of my favorite “hope against hope” comedy scenes in “Dumb and Dumber” (Lloyd played by Jim Carrey and with Loren Holly as Mary):

Lloyd: What do you think the chances are of a guy like you and a girl like me… ending up together?

Mary: Well, Lloyd, that’s difficult to say. I mean, we don’t really…

Lloyd: Hit me with it! Just give it to me straight! I came a long way just to see you, Mary. The least you can do is level with me. What are my chances?

Mary: Not good.

Lloyd: You mean, not good like one out of a hundred?

Mary: I’d say more like one out of a million.

[pause]

Lloyd: So you’re telling me there’s a chance… *YEAH!*

In my estimation, any celebration for business method patent protection based on Bilski is about as misplaced as Loyd’s excitement to hear he had a one out of a million chance for a date.  In fact, the Court’s decision is far closer to the outright ban urged by Justice Stevens’ dissent than it is even a limited victory for business method patents.  In fact, by categorizing the claim in Bilski as an “abstract idea” the Court achieved something broader than a narrow ban on business method patents, as it also cast doubt on any claim, business method or not, that can be characterized as claiming something conceptual in nature that would “effectively grant a monopoly over an abstract idea” and additionally “preempt use of [risk hedging] … in all fields.” 

If we look again at the actual claim in question, we see a number of steps that do not appear “abstract” in the ordinary sense one might think of it.  In Merriam-Webster’s, “abstract” is defined as:

1 a : disassociated from any specific instance <an abstract entity> b : difficult to understand : abstruse <abstract problems> c : insufficiently factual : formal <possessed only an abstract right>

2 : expressing a quality apart from an object <the word poem is concrete, poetry is abstract>

3 a : dealing with a subject in its abstract aspects : theoretical <abstract science> b : impersonal, detached <the abstract compassion of a surgeon — Time>

4 : having only intrinsic form with little or no attempt at pictorial representation or narrative content <abstract painting> :

When we look at one of the Bilki claims, it is hard to see why it covers an “abstract idea.”  After all, it requires real people to perform real actions that result in real contractual obligations and real risk of capital, including:

a) performing a series of transactions between said commodity provider and consumers of said;

 b) identifying market participants for said commodity having a counter-risk position to said consumers; and

c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

These claim steps define a process that is not easily seen to be  “disassociated from any specific instance”, “difficult to understand”, or “insufficiently factual.”  The claim recites a specific instance of hedging risk for commodities, is not difficult to understand and is not insufficiently factual, as it is certainly enabling.  Nor can I see how it is outside Section 101 because it “expresses a quality apart from an object.” Perhaps you could say it is expressed only in “intrinsic form with little or no attempt . . . at narrative context” but that doesn’t seem to be applicable either. 

That leaves only definition number 3 in play, i.e. that the Bilski claim “[deals] with a subject in its abstract aspects” only and therefore is not within Section 101.  But this leaves us with the question as to why the claimed process is considered abstract.  Perhaps it is because its steps primarily involve or are predicated on legalities of commercial transactions and contracts, and that these transactions and agreements by themselves are “abstract” in the sense that they exist only as conceptual constructs enforced by an agreement amoung men or citizens of a society, and have no existence outside of this abstract realm.  But then again, who really knows what the Court was thinking, as they did not provide any helpful logical analysis as to this crucial requirement of ruling a process inside or outside the realm of the abstract.

In the end, it was probably the great difficulty in defining what is or isn’t a “business method” that led the majority away from a rule that required such a definition. It is much easier to label a particular business method as an abstract idea than it is to define the universe of prohibited business methods.  Fortunately or unfortunately, depending on how you look at it, the Court has invited the Federal Circuit to attempt to provide such a definition:

“In searching for a limiting principle, this Court’s precedents on the unpatentability of abstract ideas provide useful tools. See infra, at 12–15. Indeed, if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted, and then rule that the category is unpatentable because, for instance, it represents an attempt to patent abstract ideas, this conclusion might well be in accord with controlling precedent. See ibid.  But beyond this or some other limitation consistentwith the statutory text, the Patent Act leaves open the possibility that there are at least some processes that can be fairly described as business methods that are within patentable subject matter under §101.””

Stay tuned for Bilski part II.

In re Bilski: Supreme Court Clips Wings of Business Method Patents, but Still Lets Them Fly

Monday, June 28th, 2010

While it is not surprising that the Supreme Court affirmed the result in Bilski, it is somewhat surprising (at least to this commentator) that it held that business methods were candidates for patent protection so long as they did not fall within the well established existing judicially created exceptions to patent eligibility “for laws of nature, physical phenomena, and abstract ideas.”  Moreover, the Court held that Section 101 was a “dynamic provision” and not limiting the scope of subject matter that may be patented other than the well established exceptions.

All in all, this is an expansive decision for patentable subject matter and casts doubt on a few of the Federal Circuit’s more recent decisions, In re Nuijten being one of them.

Key holdings of the Court include:

1) The method of hedging risk claimed in Bilski is not a “process” under §101.  The concept of hedging risk and the application of that concept to energy markets are not patentable processes but attempts to patent abstract ideas. 

2) However, business methods are not categorically outside the scope of Section 101.

3) The machine-or-transformation test is not the sole test for patent eligibility under §101.  Section 101 is a dynamic provision and should be read broadly.  As such, although the machine-or-transformation test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible “process” under §101.  In holding to the contrary, the Federal Circuit violated two principles of statutory interpretation: Courts “ ‘should not read into the patent laws limitations and conditions which the legislature has not expressed,’ ” Diamond v. Diehr, 450 U. S. 175, 182, and, “[u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning,’ ” ibid. The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article.  U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.

4) Nothing in the opinion should be read as endorsing the Federal Circuit’s past interpretations of §101  (e.g., State Street, 49 F. 3d, at 1373), leaving past precedent with little weight going forward.

Interesting Excerpts from the opinion:

“Adopting the machine-or-transformation test as the sole test for what constitutes a “process” (as opposed to just an important and useful clue) violates these statutory interpretation principles. Section 100(b) provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.”  The Court is unaware of any “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article. ”

“This Court’s precedents establish that the machine-or- transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.” F. 3d, at 966–976 (concurring opinion). But times change. Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, “well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (STEVENS, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable.  See id., at 192–193 (majority opinion) (holding a procedure for molding rubber that included a computer program iswithin patentable subject matter).  Section 101 is a “dynamic provision designed to encompass new and unforeseen inventions.” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, 135 (2001).  A categorical rule denying patent protection for “inventions in areas not contemplated by Congress . . . would frustrate the purposes of the patent law.”  Chakrabarty, 447 U. S., at 315.” (emphasis added)

“Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’sdefinition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as“[a]n orderly procedure or process . . . regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”).  The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear how far a prohibition on business method patents would reach, and whether it would exclude technologies for conducting a business more efficiently.  See, e.g.,Hall, Business and Financial Method Patents, Innovation, and Policy, 56 Scottish J. Pol. Econ. 443, 445 (2009)  (“There is no precise definition of . . .  business method patents”).  . . .  The argument that business methods are categorically outside of §101’s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents.  Under 35 U. S. C. §273(b)(1), if a patent-holder claims infringement based on“a method in [a] patent,” the alleged infringer can assert adefense of prior use.  For purposes of this defense alone, “method” is defined as “a method of doing or conductingbusiness.” §273(a)(3). In other words, by allowing this defense the statute itself acknowledges that there may bebusiness method patents.  Section 273’s definition of “method,” to be sure, cannot change the meaning of a prior-enacted statute.  But what §273 does is clarify the understanding that a business method is simply one kindof “method” that is, at least in some circumstances, eligible for patenting under §101.”

“In searching for a limiting principle, this Court’s precedents on the unpatentability of abstract ideas provide useful tools. See infra, at 12–15. Indeed, if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted, and then rule that the category is unpatentable because, for instance, it represents an attempt to patent abstract ideas, this conclusion might well be in accord with controlling precedent. See ibid.  But beyond this or some other limitation consistentwith the statutory text, the Patent Act leaves open thepossibility that there are at least some processes that can be fairly described as business methods that are withinpatentable subject matter under §101.”

“In light of these precedents, it is clear that petitioners’ application is not a patentable “process.”  Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk: “Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.” . . . The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea,just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.”

“Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas.The Court, therefore, need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr. And nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past.  See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357. It may be that the Court of Appeals thought it needed tomake the machine-or-transformation test exclusive precisely because its case law had not adequately identifiedless extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Actand are not inconsistent with its text. The judgment of the Court of Appeals is affirmed.”

Bilski Decision

In re Bilski — Monday, Monday, can’t trust that day…

Thursday, June 24th, 2010

OK, the Supreme Court says it is releasing its Bilski decision on Monday.  Are you anxiously looking forward or dreading the moment?  To be honest, I am not quite sure how I feel about it, but I am sure of one thing:  its going to be a very entertaining day!  As I said back a few weeks ago, I fully expect business method patents to be put out of business.  The trick will be how it gets done, and the ramifications for the gray areas around business methods.  I also expect a more flexible test of what is statutory and what isn’t.  Who knows, maybe the Supreme Court will give In re Nuijten “signals” a second chance while killing business methods! 

For those of you over 40 or so, here is the lyrics to the Mommas and the Papas “Monday, Monday” — consider “business method patents” the love lost in this song:

Monday Monday, so good to me,
Monday Monday, it was all I hoped it would be
Oh Monday morning, Monday morning couldn’t guarantee
That Monday evening you would still be here with me.

Monday Monday, can’t trust that day,
Monday Monday, sometimes it just turns out that way
Oh Monday morning, you gave me no warning of what was to be
Oh Monday Monday, how could you leave and not take me.

Every other day, every other day,
Every other day of the week is fine, yeah
But whenever Monday comes, but whenever Monday comes
You can find me cryin’ all of the time

Monday Monday, so good to me,
Monday Monday, it was all I hoped it would be
Oh Monday morning, Monday morning couldn’t guarantee
That Monday evening you would still be here with me.

Every other day, every other day,
Every other day of the week is fine, yeah
But whenever Monday comes, but whenever Monday comes
You can find me cryin’ all of the time

Monday Monday, …

In re Nuijten Revisited Yet Again — If only Einstein was a Federal Circuit Judge

Thursday, June 24th, 2010

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=mc 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.