Appeal 2006-2228
Application 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 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”
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