Appeal No. 2006-1607
Application 10/062,894
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.), a case involving a utility patent. The CCPA
stated in Hruby: "The gist of it is, as one can determine from dictionaries, that a manufacture is
anything made 'by the hands of man' from raw materials, whether literally by hand or by
machinery or by art." 373 F.2d at 1000, 153 USPQ at 65. The CCPA held that the fountain was
made of the only substance fountains can be made of--water--and determined that designs for
water fountains were statutory. Articles of manufacture in designs manifestly require physical
matter to provide substance for embodiment of the design. Since an "article of manufacture"
under § 171 has the same meaning as a "manufacture" under § 101, it is inevitable that a
manufacture under § 101 requires physical matter.
Some further indirect evidence that Congress intended to limit patentable subject matter
to physical things and steps is found in 35 U.S.C. § 112, sixth paragraph, which states that an
element in a claim for a combination may be expressed as a "means or step" for performing a
function and will be construed to cover the corresponding "structure, material, or acts described
in the specification and equivalents thereof." "Structure" and "material" indicate tangible things
made of matter, not energy.
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