Appeal No. 2007-1287
Application No. 10/161,274
A "manufacture" and a "composition of matter" are defined in Diamond v.
Chakrabarty, 447 U.S. 303, 308, 206 USPQ 193, 196-97 (1980):
[T]his Court has read the term "manufacture" in §101 in accordance with its
dictionary definition to mean "the production of articles for use from raw or
prepared materials by giving to these materials new forms, qualities,
properties, or combinations, whether by hand-labor or by machinery."
American Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11 (1931).
Similarly, "composition of matter" has been construed consistent with its
common usage to include "all compositions of two or more substances and
... all composite articles, whether they be results of chemical union, or of
mechanical mixture, or whether they be gases, fluids, powders or solids."
Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (D.C. 1957) (citing
1 A. Deller, Walker on Patents § 14, p. 55 (1st ed. 1937). [Parallel citations
omitted.]
The signal is not composed of matter and is clearly not a "composition of
matter."
A "manufacture" is the residual category for products. 1 Chisum, Patents
§ 1.02[3] (2004) (citing W. Robinson, The Law of Patents for Useful Inventions
270 (1890)). If a signal falls within any category of § 101, it must fall within this
category. The definition of "manufacture" from Diamond v. Chakrabarty requires
a tangible article prepared from materials. The other cases dealing with
manufactures also require a tangible physical article. The CCPA held in
In re Hruby, 373 F.2d 997, 153 USPQ 61 (CCPA 1967) that there was no
distinction between the meaning of "manufacture" in § 101 and "article of
manufacture" in § 171 for designs. The issue in Hruby was whether that portion of
a water fountain which is composed entirely of water in motion was an article of
manufacture. The CCPA relied on the analysis of the term "manufacture" in Riter-
Conley Mfg. Co. v. Aiken, 203 F. 699 (3d Cir. 1913), a case involving a utility
patent. The CCPA stated in Hruby:
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