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United States: Court of Customs and Patent Appeals Decision in the Matter of the Application Of Ananda M. Chakrabarty (Patentability of New Microorganisms)*

Published online by Cambridge University Press:  20 March 2017

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Abstract

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 17 , Issue 2 , March 1978 , pp. 363 - 375
Copyright
Copyright © American Society of International Law 1978

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Footnotes

*

[Reproduced from the text provided by the U.S. Court of Customs and Patent Appeals.

[The 3 to 2 Decision was reached on March 2, 1978. Chief Judge Markey's concurring opinion appears at I.L.M. page 369. The two dissenting opinions begin at I.L.M. page 370.

[The Budapest Treaty onthe International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, opened for signature April 28, 1977, appears at I.L.M. page 285.]

References

1/ As a matter of general interest, the assignee of appellant's invention has been granted British patent 1,436,573 containing this and other claims to the bacterium.

2/ 35 USC 101 reads: §101. Inventions patentable Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

3/ Although Bergy reached this court and was decided before the instant appeal (Chakrabarty), the latter was the first to be decided by the board. The two cases were clearly pendinq in the board at the same time and were decided by entirely different 3-man panels. Chakrabarty was decided Hay 20, 1976, and Bergy June 22, 1976. Bergy appealed forthwith but Chakrabarty filed a petition for reconsideration which was decided October 19, 1976. Bergy v/as argued in this court on March 3, 1977, and Ciayobarty on December 5, 1977. Any common language found in the board's two opinions — and there is much — presumably originated in the Chakrabarty cane.

* It the oil degrairating activity of the present invention were stopped, i.e., if the inventor had “killed” his invention, (and if the invention had some utility in its dead form) the Patent and Trademark Office reasoning would require allowance of appellant's application.

1 ConTrary oF Chief-Jiurgc Markev’s statement, I find no admission by anyone that the present invention is a statutory “manufacture.” “Manufacture” and “man-made” are not synonymous for patent purposes. American Fruit Growers, Inc. v. ftrogek-x Co., 283 U.S. I, 8 USPq 131 (1930)

2/ I agree with Judge Miller's thorough analysis of the legislative history.

1/ Each of the above-cited committee reports, at page 3. quotes Thomas A. Edison that— Nothing that Congress could do to help farming would be of greater value and permanence than to give to the plant breeder the same status as the mechanical and chemical inventors now have through the patent law.

2/ I am also persuaded by the point so well made in Judge Baldwin's dissenting opinion.