Engineering Expert Witness Blog

      Imagine having freshly baked pastries available to you all day long, every day, while at work.   I’m not talking about someone bringing in a box of donuts to share, I’m talking about baked goods on a massive scale.   This is what I experienced in one of my design engineering positions within the food industry.   These baked goods constituted the articles of manufacture of the food plant, and they presented a constant temptation to me.

      Just what constitutes an article of manufacture is another aspect of the second hurtle which must be passed to determine patent eligibility.   It is addressed under federal statutes governing the same, 35 USC § 101, and is contained within the same area as the discussion of what constitutes a machine, a subject we took up previously in this series.

      Why bother defining articles of manufacture?   Well, while hearing the patent case of Diamond v. Chakrabarty regarding genetically engineered bacterium capable of eating crude oil, the US Supreme Court saw fit to define the term so as to resolve a conflict between the inventor and the patent office as to whether a living organism could be patented.

      The net result was the Court declared that in order to be deemed a patentable article of manufacture the object must be produced from either raw or man-made materials by either hand labor or machinery and must take on “new forms, qualities, properties, or combinations” that would not naturally occur without human intervention.   In other words, a creation process must take place and something which did not previously exist must be caused to exist.

      The court’s definition of articles of manufacture encompasses an incredible array of products, much too vast to enumerate here.   Suffice it to say that the defining characteristic is that if it should consist of two or more parts, there is no interaction between the parts, otherwise it could be categorized as a machine.   In other words, the relationship between their parts is static, unmoving.   An example would be a hammer.   It’s made up of two parts, a steel head and wooden handle.   These parts are firmly attached to one another, so they act as one.

      Next time we’ll continue our discussion on the second hurtle presented by 35 USC § 101, where we’ll discuss what is meant by composition of matter.
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