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No En Banc Rehearing on Signal Claims Being Non-Patentable Subject Matter

By William F. Heinze

As noted by Filewrapper,

In a precedential opinion [yesterday], the Federal Circuit denied a petition for rehearing en banc in In re Nuijten. In that case, a panel of the court held that claims drawn to a "signal" did not fall into any of the statutory categories of patentable subject matter and were thus unpatentable under § 101. . . .

It appears likely that a petition for certiorari to the Supreme Court will be filed in this case. This is further supported by the fact that in its last case dealing with § 101, Laboratory Corp. v. Metabolite Laboratories, Inc., the Court dismissed the petition for certiorari as improvidently granted, a decision that sparked three justices to dissent, showing that the Court may be looking for a case that presents a vehicle to rein in the scope of § 101.

Professor Crouch at Patently-O adds that ?[t]he Comiskey case is (apparently) still pending decision on rehearing. Comiskey arguably stretches the 101/103 relationship even further than Nuijten. However, it may have an even smaller shot of rehearing en banc because of the lack of a dissent as well as a lack of amicus support for the en banc request.?

"The manifest panel departure from precedent in Nuijten and Comiskey clearly deserves an en banc blessing or repudiation to fulfill the promise of a uniform, consistent body of patent case law," quips Professor Wegner.

Full post as published by I/P Updates on February 12, 2008 (boomark / email).