In re Nuijten, No. 2006-1371 (Fed. Cir. Feb. 11, 2008)

On February 11, 2008, the Federal Circuit denied a rehearing en banc of a previous panel decision holding that signals are unpatentable subject matter because they do not fit into any of the four categories of patentable subject matter set forth in 35 U.S.C. 101. Three judges, including the lone dissenter from the original panel, Judge Linn, dissented from the Court's decision not to rehear the case en banc. Judge Linn wrote that the "decision conflicts with our own precedents as well as those of the Supreme Court." Specifically, the decision ignores the Supreme Court's holding that "patentable subject matter includes 'anything under the sun that is made by man' except for certain enumerated exceptions: 'The laws of nature, physical phenomena, and abstract ideas have been held not patentable.'" According to Judge Linn, the signal at issue does not fall within any of those exceptions and, but for the "majority's narrow construction of 'manufacture,'" properly should fall within Section 101 as patentable subject matter.