Are All Patents Fleeting?

The reasoning of the Court of Appeals for the Federal Circuit in its recent decision in In Re Nuijten and its subsequent denial of a petition for rehearing en banc has the potential effect of invalidating thousands of issued patents that may fall into newly un-legislated exceptions from patentable subject matter In Re Nuijten, 500 F.3d 1346 (Fed. Cir. 2007), rehearing denied, 515 F.3d 1361 (Fed. Cir. 2008). The Federal Circuit in In Re Nuijten held that a transitory propagating signal is not patentable subject matter under 35 U.S.C. § 101.

Background:

Nuijten's patent application discloses a technique for reducing distortion induced by the introduction of "watermarks" into signals. In the context of signal processing, watermarking is a technique by which an original signal is manipulated so as to embed within it additional data. The additional data is preferably imperceptible to someone who