Appeal No. 1999-1763
Application No. 08/834,931
In rejecting claims 1 through 8, the examiner has taken
the position that the recitation of the worms in the claims is
non-statutory subject matter under 35 U.S.C. § 101 and that
the rejection of the aforesaid claims is proper inasmuch as
the recited worms are not substantially altered or changed.
The examiner finds support for his position in Ex parte
Grayson, 51 USPQ 413 (Bd. App. 1941), which is drawn to a
shrimp with the head and digestive tract removed. Like
appellant, we find the examiner’s position untenable inasmuch
as the overall subject matter of appellant’s invention, as set
forth in claims 1 through 8 on appeal, is an apparatus for
vermiculture. Appellant’s apparatus falls within one of the
four classes of inventions (i.e., process, machine,
manufacture and composition of matter), as defined by 35
U.S.C. § 101, namely, a machine. The courts have determined
that subject matter which falls outside the four statutory
categories are abstract ideas, laws of nature and natural
phenomena and that subject matter which is not a practical
application or use of an idea, a law of nature or a natural
phenomenon is also not patentable. See Rubber-Tip Pencil Co.
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