When Can a Digital File be a “Product” under Section 271(g)?

Yangaroo v. Destiny Media Techmap_can_usa.jpg (E.D. Wisc. 2010)

In an interesting trans-national infringement case, Judge Griesbach awarded summary judgment of non-infringement in favor of the accused infringer. The court held that the Canadian-based defendant’s actions did not qualify as infringement under Section 271(g)’s proscription against importation-of-a-product-made-by-a-patented-process.

35 USC 271(g): Whoever without authority imports into the United States or offers to sell, sells, or uses within the United States a product which is made by a process patented in the United States shall be liable as an infringer. . .

The asserted patent claims a particular method of distributing a content file over a network. After a series of steps, recipient terminals are provided with access to the content file. The accused infringer (Destiny) distributes encrypted music files using a method that (arguably) would infringe the patent under 271(a) if it had been performed within the US. The focal-point of the 271(g) dispute here was on whether the digital music files could be considered “products” within the meaning of 271(g).

Some prior cases:

  • Bayer AG v. Housey Pharm., Inc., 340 F.3d 1367, 1371-72 (Fed. Cir. 2003) (271(g) applies only to “physical products” and does not extend to “information” produced by a patented process.).
  • NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005) (citing Bayer and holding that email packets sent from Canada were not “products . . . [b]ecause the ‘transmission of information,’ like the ‘production of information,’ does not entail the manufacturing of a physical product . . . .”).
  • CNET Networks, Inc. v. Etilize, Inc., 528 F. Supp. 2d 985 (N.D. Cal. 2007) (transmission of electronic catalog of product information could be a “product” within the meaning of 271(g); distinguishing NTP and Bayer as involving “services” and “information” rather than “products” and stored data).
  • Ormco Corp. v. Align Technology, Inc., 609 F. Supp. 2d 1057 (C.D. Cal. 2009) (a three dimensional digital representation of teeth transmitted to recipients in the United States was a product).

Present Decision: In Yangaroo, the court distinguished CNet and Ormco by holding that the distributed music file was not a “product” of the method because the music file was not created by the claimed process.

Notes:

  • The Defendant (Destiny) did modify the music files during its distribution process by encrypting them. The district court held that the newly encrypted files could not be considered 271(g) products because the asserted patent did not claim encryption.
  • Ted Sabety handled the defense.

56 thoughts on “When Can a Digital File be a “Product” under Section 271(g)?

  1. 56

    If the Commission has instituted a civil action or an administrative action for a violation of section 9, a State may not, during the pendency of such action, bring an action under this section against any defendant named in the complaint of the Commission for any violation of section 9 that is alleged in that complaint.

  2. 55

    It doesn’t matter what you offer to consumers, sooner or later someone will decide to sue you over it. When that happens, you need a quality product liability defence team to protect you against what will probably amount to an argument in favor of someone’s own carelessness.

  3. 54

    That doesn’t mean what you seem to think it means tard.

    Moleculon counters that using the transitional phrase “which comprises” not only opens the claim to additional steps, but also opens the claim and its individual method steps to additional structural elements. Moleculon’s statement is far too broad

    and

    we conclude that the transitional phrase does not, in the present case, affect the scope of the particular structure recited within the method claim’s step.

    6 – you be wrong (too broad), I be right (not affect scope within claim).

  4. 53

    “Maybe you should tell that to 90% of my applicants.”

    Maybe you should. It’s your job, and you already have their address.

  5. 51

    “Sure, the claim is “comprising”, but if it’s a “method of assembling a bicycle comprising” you should still have to end up with a bicycle. ”

    That’s probably more or less true, regardless of whether or not you consider the preamble limiting, although one can’t be sure.

    “So, no step D at the end involving launching the bicycle into the sun, or taking away a component that it needs to be a bicycle.”

    I have no problem with either of those two steps since one can always add step E that involves making a new bicycle or adding that component back.

    “Also, “providing” isn’t really a method step”

    Maybe you should tell that to 90% of my applicants.

  6. 50

    ping cause the major driver is still Z

    Again, ping, I have no idea what you mean by “major driver” in this context.

  7. 49

    Let me put this simply:

    No material change from Y to Z – you infringe.

    Not if X->Y can be made by a commercially viable non-patented process. This is your error. Read carefully: If there are commercially viable non-infringing processes to have arrived at X, the connection between the patented process for producing chemical X and the ultimate product, chemical Y, is broken, and Y would be a non-infringing product having satisfied both phases of the test.

    The materiality of the change is irrelevant. You need to appreciate that all of this relates to the “material change” prong of 271(g) (i.e., 271(g)(1), “the first part of the test” alluded to by the Federal Circuit). If the intermediate can be made by a non-infringing, “commercially viable” method, then there is no “material change” according to the statute. Sounds weird? It is weird, but that’s the law.

  8. 48

    6: “For instance, I could start out making a bicycle by providing a frame but by the end of the method have removed the frame and made a car.”

    I suppose that depends on what else the claim says.

    Sure, the claim is “comprising”, but if it’s a “method of assembling a bicycle comprising” you should still have to end up with a bicycle. So, no step D at the end involving launching the bicycle into the sun, or taking away a component that it needs to be a bicycle.

    Also, “providing” isn’t really a method step, so ideally one of the actual method steps would involve doing something with/to the frame, which again would be part of the claimed method no matter what other steps you add.

  9. 47

    “Need I remind you that “comprising” cannot materially alter the claim scope?”

    LOL WUT? It doesn’t “materially alter” it, it defines it.

    “(“Comprising” is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.)”

    That doesn’t mean what you seem to think it means tard. It means precisely what I was just saying. When that part refers to “elements” it isn’t referring to structures formed in the claim, it is referring to the steps of forming. Sure, in my example you have to have actually provided a frame, but you could just as well take that frame away in a subsequent step and replace it with two axles to begin work on a car.

    You need to go read the case upon which you are in the end relying upon to find out how rtarded you are.

    Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 229 USPQ 805 (Fed. Cir. 1986);

    link to scholar.google.com.,+793+F.2d+1261,+229+USPQ+805+(Fed.+Cir.+1986)%3B+&hl=en&as_sdt=80000000000002

    Go ahead, run along and learn something.

  10. 46

    I aint kicking up dust just because you be wrong, Sunshine.

    You want me to pincite something for you now? And you say I’m a terrible writer. OK, let’s put it this way – you are way better than me at writing something wrong. That make you happy?

    Your allusion to “commercially viable” alternatives as an end to “material” still conflates the notion of “material” versus what you think the loophole be. Your allusion is illusion.

    Let me put this simply:

    No material change from Y to Z – you infringe.

    If material change from Y to Z, then you must look at intermediate X to Y.

    If X to Y only through patent method, you infringe (this is a bonus – you seem to forget that).
    If X to Y possible otherwise, then you don’t infringe (cause the major driver is still Z – don’t forget that).

  11. 45

    ping Rader merely argues about the impact of material change – he don’t say it isn’t there. He never say the change is not material, like you be trying.

    ping, maybe this case is too difficult for you to follow. I agree that it is confusing, but you are missing the boat completely. And you are a terrible writer.

    If you can point to something I wrote that is incorrect and explain why it is incorrect using a cite from the case, that might help clarify things (for you). Otherwise you seem to be simply kicking up dust.

    As the case sets forth (citing the Senate discussion of the meaning of the term “material change”):

    If there are commercially viable non-infringing processes to have arrived at X, the connection between the patented process for producing chemical X and the ultimate product, chemical Y, is broken, and Y would be a non-infringing product having satisfied both phases of the test.

    You need to understand that when there are “commercially viable” alternatives to making the intermediate, that is the beginning and end of the analysis of “material change” under 271(g).

  12. 44

    6,

    Need I remind you that “comprising” cannot materially alter the claim scope?

    (“Comprising” is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.)

    You need to get that refresher course on examining?

  13. 43

    Cepts Sunshine, to quote Rader: “By 1986, “material change” had crept into the statute”.

    Rader merely argues about the impact of material change – he don’t say it isn’t there. He never say the change is not material, like you be trying. You be saying that material change be absent – just aint so.

    You be wrong on your thought. You be wrong on thinking what Rader said. yoube needing a better cite to support your view, cause Rader aint saying what you think.

    Sides, Rader’s concurrence contains the discsussion of materialness as a dissent topic – not a forceful guiding law.

  14. 41

    Me: It could be a very, very minor change in the character of Y”

    Ping: No it can’t. That’s the error of your summary.

    Then it’s the error of Rader’s summary, too. Except both Rader and I are right, and you’re wrong, ping.

  15. 40

    This whole discussion you guys are having hinges on the logical absurdity created by trying to tie down what product is made by method claims that use “comprising”. Any method claim that utilizes the word “comprising” covers any process that even involves the claimed process at any point in time no matter what outcome happens at the end. The products made by many of the embodiments covered by that method claim could range from something that resembles what is done in the claim to dust, a car, or any product. For instance, I could start out making a bicycle by providing a frame but by the end of the method have removed the frame and made a car. I would still have made a product that was made by a claim to a method of making a bicycle comprising: providing a bicycle frame.

    Here however we have a digital “filelol” that is asserted as being a “product”. Indeed, the only thing that it appears is actually imported is a signal as I understand the facts to show they digitally transfer the files into the US. Plainly a file is not a product, regardless of encryption methods etc. etc. just the same as a signal is not a product. This decision goes out on a limb it never needed to have gone out on.

    Oh, and that minor transformation nonsense, where would the judiciary find the balls to read that nonsense into the statute? If the claim says comprising then it means comprising.

  16. 39

    It could be a very, very minor change in the character of Y

    No it can’t. That’s the error of your summary.

    Plain and simple (there. I’ve dropped my Driver – too bad I do not have a blonde to pick it up for me…)

  17. 38

    ping, I recognize that this can be confusing. But it appears that you are not even trying to help. Please drop this “driver” language as it is not clear at all what you are (ahem) driving at.

    I’ll repeat my earlier summary:

    Drug Z is made by the following process X->Y->Z. I own the US patent on the method of X->Y. Unless X->Y is the only known “commercially viable” way of making Y, then I can do nothing to stop the importation of Z, even if the manufacturer of Z admits to using my patented method to make Y. It is irrelevant whether Y is “materially changed” when it is converted to Z. It could be a very, very minor change in the character of Y, with no detectable change in the therapeutic activity relative to Z.

    Again: the availability of an alternate “viable” route from X->Y renders any consideration of the change from Y to Z moot, i.e., if under this scenario Z is manufactured by first using the patented process X->Y, then followed by a trivial change Y->Z, then imported, there is no infringement of the X->Y process under 271(g). On the other hand, if the facts are the same EXCEPT there are no alternate “viable” ways to achieve X->Y, then there would likely be infringement under 271(g).

  18. 37

    TINLA,

    simply on the basis that

    but it aint “simply on the basis” – that’s the quibble and the misleading portion.

    Malcolm’s add-on is simply incorrect: “It is irrelevant whether Y is “materially changed” when it is converted to Z” cause the material change be exactly what is relevant.

    The change to Z is the driver – whether or not X to Y was done by the patented process or not is simply immaterial (unless the patented process is the only way to get from X to Y, then and only then is it material).

  19. 36

    This is the way I understand it: let’s say you import Drug Z into the US.

    Drug Z is made by the following process X->Y->Z. I own the US patent on the method of X->Y. Unless X->Y is the only known “commercially viable” way of making Y, then I can do nothing to stop the importation of Z, even if the manufacturer of Z admits to using my patented method to make Y. It is irrelevant whether Y is “materially changed” when it is converted to Z. It could be a very, very minor change in the character of Y, with no detectable change in the therapeutic activity relative to Z.

    My initial comment on the statute is correct. My attempt to clarify at 12:47 was confusing. If you tried to import the intermediate Y itself, you’d still be liable under 271(g) assuming it was made by the patented process.

  20. 35

    Ping,

    I don’t understand your quibble with Malcolm’s logic, especially if it is the case, as he pointed out, that an imported intermediate product does not infringe a patented process claim, even if it is made by that process, simply on the basis that there are alternative non-infringing processes by which the product can be made. I mean, wasn’t he quoting the court when he said, “it is enough to defeat the claim of infringement that there is another way of producing the intermediate, even if the alleged infringer does not use that alternative process?” Will you please clarify your quibble?

  21. 34

    If only Mooney had some clients upon which to burn his considerable energies. In exchange for pay no less.

  22. 33

    Malcolm,

    Thanks but there’s an error in your logic. The snippet above (the part of your post that I questioned) was in relation to a pure “even if the patented process actually was used to make the product”.

    You have conflated the express “used the patented process” with the driving exception of subsequent material change. It is the subsequent change that rules, and not the “but you used the process” like your initial post suggests.

  23. 32

    ping, from the Lilly v. American Cyanamid, there is a lengthy discussion of what “material change” means, and it gets very weird:

    50
    The Senate report provided an analysis of how the first part of the test should be applied in the case of chemical intermediates. The report explained (S.Rep. No. 83, supra, at 51):

    51
    If the only way to have arrived at Y is to have used the patented process at some step, e.g., producing X as an intermediate, Y is infringing.

    52
    If there is more than one way to have arrived [at] Y, but the patented process is the only commercially viable way to have done so, Y is infringing.

    53
    If there are commercially viable non-infringing processes to have arrived at X, the connection between the patented process for producing chemical X and the ultimate product, chemical Y, is broken, and Y would be a non-infringing product having satisfied both phases of the test.

    54
    As we noted above, the record makes clear that there is at least one commercially viable process for making cefaclor that does not involve the patented method of synthesizing enol cephems (including compound 6). Opos does not use that non-infringing process, but under the test set forth in the Senate report, it is enough to defeat the claim of infringement that there is another way of producing the intermediate, even if the alleged infringer does not use that alternative process.

    That’s the loophole. As noted by Rader in his concurrence:

    Sadly this decision will create another massive loophole in the protection of patented processes. This decision will, in effect, deny protection to holders of process patents on intermediates as opposed to “final” products. This decision denies protection to a patented process anytime it is not the only way to make an intermediate, even if it is the most economically efficient way to produce the intermediate.

    link to cases.justia.com

  24. 31

    Malcolm,

    Seen the link, still don’t see the “even if the patented process actually was used to make the product” basis of your comment.

  25. 29

    Dennis, I was confused when you wrote, “In Yangaroo, the court distinguished CNet and Ormco by holding that the distributed music file was not a ‘product’ of the method because the music file was not created by the claimed process … The Defendant (Destiny) did modify the music files during its distribution process by encrypting them. The district court held that the newly encrypted files could not be considered 271(g) products because the asserted patent did not claim encryption.”

    Not knowing the facts of the case, it sounded to me like you were saying that the Court read a limitation into the claim that the process did not include encryption, or that the claim actually had a limitation specifying that the files were not encrypted. I think that confusion would have been avoided if you had stated, first, that the Court held that the claim was a claim of distributing a product that was already created, and not one of manufacture, and that the patentee argued that the defendant’s act of encrypting the files amounted to manufacturing a product.

    In my view, the absence of an encryption step (or other transformative step) in the claim means that it there is no product being manufactured, so the distributive method steps must be performed in the US to find infringement. In other words, it does not matter whether the imported files were a product or not. Rather, the claimed process cannot be infringed by importation of a product that is merely distributed in the same way. I’ve copied the relevant portion of the decision below for convenience of readers.

    “Unlike the patents at issue in CNET and Ormco, however, the ‘712 patent does not claim a method of creating or manufacturing the digital content that is received in servers and then transmitted to authorized recipients. What is claimed in the ‘712 patent is “a method of distributing content” that already exists. The ‘712 patent claims no method or process for the creation of the content that Yangaroo argues constitutes the product that is essential to establish infringement under section 271(g). It therefore follows that Yangaroo’s infringement claim must fail.

    Yangaroo attempts to avoid this result by suggesting that the encryption of the preexisting
    content transforms it into a product made by Destiny’s infringing process. Yangaroo notes that Destiny’s Rule 30(b)(6) witness, Steven Vestergaard, testified that Destiny’s servers
    located outside the United States encrypt the data file before sending it to the authorized
    recipients, and argues that such encryption changes the constitution of the data file. While it is true that the content providers, such as music distributors, encode the digital content they upload to Destiny’s servers, Yangaroo argues that because the data leaves the servers in a different arrangement of electrons when it is distributed, the Play MBE system in effect
    manufactures a new product. But even assuming encrypting an existing data file amounts to
    manufacturing a product, the ‘712 patent does not claim such a process. The sole claim is a
    method of distribution. Accordingly, Yangaroo’s claim must fail.”

  26. 28

    Malcolm,

    I also disagree with you that Ormco and CNet were “incorrectly decided.” CNet involved a patent method for creating a product catalog. Ormco involved a 3D digital model made by the patented process. Unlike Bayer which involved simply “information” resulting from the patented process that was used for the selecting the imported drugs, products were created by the patented methods in CNet and Ormco. That’s a huge difference, and why CNet and Ormco correctly distinguished Bayer.

  27. 27

    Malcolm,

    Here are the cases you might be thinking of, especially Standard Havens:

    Standard Havens Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1374 (Fed. Cir.
    1991) (holding that the sale of asphalt plant to foreign customer did not infringe method
    patent under § 271(g) because there was no evidence that the foreign customer used plant
    in the United States or shipped products back to the United States); Robotic Vision Sys.
    v. View Eng’g, Inc., 39 U.S.P.Q.2d 1117, 1119 (C.D. Cal. 1995) (holding that § 271(g)
    does not apply to possible use of patented method outside United States for a good that
    might possibly be imported).

  28. 24

    In Yangaroo, the court distinguished CNet and Ormco by holding that the distributed music file was not a “product” of the method because the music file was not created by the claimed process.

    A well-reasoned decision. I’m not sure why Omco and CNet needed to be distinguished. They were incorrectly decided and could have been fairly ignored by the judge in Wisconsin.

    “A product which is made by a patented process will, for purposes of this title, not be considered to be so made after –

    (1) it is materially changed by subsequent processes; or

    (2) it becomes a trivial and nonessential component of another product.”

    I recall that this passage has been construed by the Federal Circuit such that it also excludes from 271(g) the capture of an imported product that *could have been made* by a non-patented process, even if the patented process actually was used to make the product. Or was that loophole closed at some point?

  29. 23

    Tara,

    You seem a bit confused by how the courts work – you will want to read the actual case and see that the patent being pursued does not reach what the plaintiffs claimed – the question of whether the item is a product or not is moot because the patent claims do not create a product. Distributing a product is simply not making a product.

    Keep in mind too that law is made by judges and read the previous cases with this concept in mind.

  30. 22

    The entire 271g has been written and is for the protection of a a patent and patented inventions. A patent or a patented invention by this broad use of the terms is not limited to a physical hold in your hand product. Hence 271g cannot be limited to a product. The judge does not know or understand science or has the capability to do so. How can he in good faith, with this lack of knowledge and capacity does he purport to make such decisions. If a file is put on CD and mailed is a product and if tranmitted electronicaly is not a product is 19th century mind logic for one who is still mentally living in the 19th century. This out to go to the supreme court, and further those judges at any level who do not have a science background should recuse themselves from hearing patent caases.

  31. 21

    when it’s pretty clear that digital files are never “products” under anything.

    Then try reading past the headlines Sunshine. Ya bought Dennis’ trolling headline without a second thought – go figure.

  32. 20

    I can’t help but get the feeling everytime I read the headline to this post that this is nothing more than a lawlyer asking “I can haz product under Section 271(g)?” when it’s pretty clear that digital files are never “products” under anything.

  33. 19

    Ron,

    Do the “produce[d] data packets of ‘digital creations’” have any substantial use outside of that specifically involved in the infringing activity (very doubtful, as they are created for that purpose)?

    Most likely, the foreign entity would still be on the hook.

    Of course, to make things interesting we could start talking about copyright violations…

  34. 18

    Ron, the Chi-coms have shown the way to restrict access to unwanted cites. I don’t know the details on how they do it, but if the entities that control access are subject to court jurisdiction; the court could order an appropriate remedy.

    But, here I think the remedy might be worse than the disease, as any system that could block access to unwanted cites could be abused, such as by imposing taxes, spying or blocking access to disfavored speakers.

  35. 17

    anonymous,

    Having read the claim at issue more closely, it’s even more apparent that 271(g) doesn’t apply. All that the claimed method covers is the distribution of content (e.g., media) that pre-exists on a server (which I presume is outside the U.S.) to authorized “recipients” (who are in the U.S.). In other words the claimed method does not involve “making/manufacturing” of a product by a patented process in the 271(g) sense.

  36. 16

    Assume for the sake of argument that the process claim in this case had contained limitations covering method steps that in their totality produce data packets of “digital creations” per Ormco and infringement liability under 271(g) could be found. If the alleged infringer’s operations and servers are entirely in a foreign country and there is no U.S. presence or promotion, would anybody here care to comment on whether there would exist a practical cause of action in the U.S. against the foreign entity operating the patented process other than going after individual U.S. internet users of the service?

  37. 15

    EG: Wasn’t there a making? The claim recites “receiving and storing, at the server, a content file” which thus claims a making of a server with a content file stored thereon, right? Unfortunately for them, they didn’t export the server into the US.

  38. 14

    The proprietor also has a granted patent in Canada, and both parties also happen to be Canadian. I’d be curious to know whether they’re also slugging it out before a local court, it wouldn’t be any colder up there than in Wisconsin. (Why was this venue chosen anyway?)

    I’m very uncomfortable with the idea that the infringement issue resides in the end with the information content of a signal.

  39. 13

    “could a patentable “method of distribution” that includes a non-patentable making step of an article preclude importation of that article?”

    Anonymous,

    Possibly, in view of tne CNet and Ormco cases. The key to avoid the Bayer result is to have the claimed method “create” something other than just “information.” Normally, creation of something like computer media or audio/video media that has its own functionality should be enough to be considered a “product made/manufactured by a patented process” under 35 USC 271(g). That’s what Yangaroo failed to with it’s method of distributing content which already existed, as you now have an existing product, not one that is created (“made/manufactured”) by a patented process as 35 USC 271(g) requires.

  40. 12

    I’m with the others that there’s no infringement here if the judge’s characterization of the claimed method is correct (“distributing existing medea”, not “creating the media”). Instead, what we have here appears to be a claim drafting mistake, as others have also suggested.

  41. 11

    ping: if you’re smart enough to recognize that a making step could be omitted and still have a patentable claim (as evidenced by your malpractice comment), you should be smart enough to figure out the non-patentable making step is one that can be omitted and not affect patentability.

  42. 10

    anonymous,

    Perhaps you can make a case of malpractice against the applicant’s lawyer for making a single claim with making and using elements (thereby catching neither types of infringers – those making or those using), as it appears that the potential set of infringers that both make and use would tend towards zero.

    As to your question about a claim (singular) that includes a non-patentable making step, youz gonna havta rephrase the question, as patentability is considered for claims as a whole – not elements or steps.

  43. 8

    Another question: could a patentable “method of distribution” that includes a non-patentable making step of an article preclude importation of that article?

  44. 7

    What if the patented process recites a making in a step, but it has nothing to do with patentability? In other words, what if it wouldn’t have been possible to obtain an apparatus/composition claim on what was made in one step of a larger patented process? Does a non-patentable making step count under the statute?

    Hypothetical Issued Patent Claim: (1) make a shovel; and (2) use the shovel to perform a novel/non-obvious digging technique (which doesn’t alter the shovel). Let’s say a defendant performs that claimed method outside the U.S. Should they be forbidden from exporting the shovel into the U.S. just because the claim mentioned a making of the shovel?

    Is something “made by a process patented” when the process recites additional steps that are crucial to patentability, but irrelevant to a making step?

  45. 6

    Seems right. There is a difference between a bridge and the carts on the bridge. The statute covers carts (produced by patented processes) when imported. But the claim was to the bridge.

  46. 4

    the court distinguished CNet and Ormco by holding that the distributed music file was not a “product” of the method because the music file was not created by the claimed process.

    Sounds about right. It’s a method of distributing, not a method of making.

    We’ll get them next time. Those crafty Canadians…

  47. 3

    Dennis, the link to the decision doesn’t work (at least not for me).

    What’s interesting here is it appears the judge ignored the end of 271(g):

    “A product which is made by a patented process will, for purposes of this title, not be considered to be so made after –

    (1) it is materially changed by subsequent processes; or

    (2) it becomes a trivial and nonessential component of another product.”

    Did the judge get this far in the analysis, or did (s)he simply rule that it’s not the product of the process, period, and not get to the exceptions provision? There were some CAFC cases in the 1990’s involving recombinant human growth hormone that bizarrely said that even if the claim was directed to a process for making DNA or a transfected cell, the protein product produced by the cell was still considered a product of the process. I would have thought that that constitutes a material transformation. I’m curious if here the ruling was that the encrypted file was considered materially changed or simply not the product of the claimed process.

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