Appeal No. 95-0678
Application 07/938,960
In Shepherd, the claimed article was soil having applied
thereto a polymer gel which contained a fumigant. The Board’s
reasoning for holding that this article is patentable subject
matter is (Shepherd 185 USPQ at 483):
. . . the claims specifically call for “soil
having applied thereto” a fumigant. The
claims, therefore, clearly cover a
combination of soil and fumigant. The fact
that the claims can be read to permit the
presence of only an “infinitesimal” amount of
fumigant does not alter the fact the claims
are directed to a combination.
We believe, essentially for the reasons set forth in
Ex parte Mowry, supra, that the claimed combination may
reasonably be considered statutory subject matter within the
meaning of 35 U.S.C. § 101. Soil which is treated with
appellant’s fumigant has been transformed from soil and is a
new and different article.
In our view, appellant’s coating, by adhering the lint
close to the seed coat and rendering the cottonseed flowable,
transforms the cottonseed into an article which has a property
which is not possessed by cottonseed in its naturally-occurring
state. Thus, in line with the reasoning in Mowry and Shepherd,
we consider appellant’s coated cottonseed to be a “manufacture”
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