Did anyone else catch this contradiction by Mr. Jakes?
- MR. JAKES: Well, it’s not that clear from the Federal Circuit’s transformation test whether that would apply or not, because although the Federal Circuit
- has said transformation of data might qualify, it said it has to represent something physical, something — a real object. And sound doesn’t necessarily have to be that. Sound can be generated artificially. So –
- JUSTICE SCALIA: Sound — sound is not physical, and electric current is not physical?
- MR. JAKES: I think electric current is physical.
- JUSTICE SCALIA: Yes, I think so.
- MR. JAKES: Yes.
- JUSTICE SCALIA: Sound is, too.
- MR. JAKES: It can be, but when it’s transmitted over a wire, it’s not. It’s something else. It’s an electrical current then.
So let me see if I’ve got this right, Mr. Jakes. There are instances where sound is not physical, but an electric current is always physical. An instance when sound is not physical is when it is transmitted over a wire, which turns it into something else. That something else, in your own words, is an electrical current. Didn’t you just say that an electric current is physical? So how would sound not be physical?
And also, I’ve got a question for Justice Scalia. I’m confused by this dialogue:
- JUSTICE SCALIA: Sound is not transmitted over the wires. Sound has been transformed into current, and current is transmitted over the wire and then transformed back at the other end into sound.
- MR. JAKES: Yes, and I would agree –
- JUSTICE SCALIA: I think it clearly -clearly would have been covered by — by the test the government (referring to the machine-or-transformation test).
If current “clearly” passes the Bilski test, are you saying that a signal would also pass this test? If so, I am confused why you and your fellow justices failed to grant cert. and explain this for In re Nuijten where the Federal Circuit held that a “signal” was abstract, and not patentable subject matter. Perhaps a signal cannot be claimed as the “product” type of subject matter, but rather as a process. See Mr. Stewart’s explanation that manufactures, machines, and compositions of matter should be construed to encompass a very broad amount of subject matter and the machine-or-transformation test only applies to processes.