Appeal No. 2006-2228
Application No. 10/231,678
The intangible embodiment 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. "Tangible" refers to
something that is discernible by touch. 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.), 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
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