Ex Parte Koelle et al - Page 15

                Appeal 2007-1341                                                                                 
                Application 09/894,065                                                                           
                       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"                              
                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.                     

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