Appeal No. 2007-1287
Application No. 10/161,274
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 or signals.
ANALYSIS
We note that while Appellants have argued claims 1 through 5, and 9
through 24 as a group, the second issue does not apply to independent claims 5,
and 14 as they do not recite limitations directed to separate values indicating that
the channel has been provisioned and whether a failure has been detected.
Therefore, we will consider the claims in two groups, Group 1 consisting of claims
1 through 4, and 22 through 24 and Group 2 consisting of claims 5, and 9 through
8
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