Appeal No. 2006-2228
Application No. 10/231,678
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.
By Appellant’s admission, claims 35. 37, and 38, include intangible
embodiments that do not have any tangible physical structure or substance and
do not fit the definition of a "manufacture" which requires a tangible object.
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