Appeal 2007-1341
Application 09/894,065
also Burr v. Duryee, 68 U.S. 531, 570 (1863) (a machine is a concrete thing,
consisting of parts or of certain devices and combinations of devices).
Machines do not have to have moving parts. In modern parlance, electrical
circuits and devices, such as computers, are referred to as machines. The
intangible "carrier wave" or a "propagated signal" embodiment of claim 21
has no concrete tangible physical structure, and does not itself perform any
functions. Therefore, as such, an intangible does not fit within the definition
of a "machine."
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
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
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 intangible embodiment of claim 21 is not composed of matter and
is clearly not a "composition of matter."
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