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. 15Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
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