concurring.
I join in full the well reasoned and cogently stated majority opinion of my Brother Rich. These few remarks are prompted, with all due respect, by the dissenting views expressed by my Brothers Baldwin and Miller.
*44The sole issue before us is whether a man-made invention, admittedly novel, useful, and unobvious, is unpatentable because, and only because, it is “alive” (in the sense that microorganisms are “alive”).
There are but two sources for manufactures and compositions of matter. They are God (or “nature” if one prefers) and man.
As presented to us, the invention is admittedly a “manufacture” by man. It therefore falls squarely within the language of the statute. The Patent and Trademark Office desires to read into the statute the word “dead” before “manufacture” and before “composition.” *
The statute is not ambiguous. No Congressional intent to limit patents to dead inventions lurks in the lacuna of the statute, and there is no grave or compelling circumstance requiring us to find it there.
The Plant Patent Act of 1930 has nothing to do with the case before us and is of no aid in a search for what the intent of Congress would have been were it confronted with the present invention. Moreover, it is not necessary that we assume plants to have been within the scope of the patent statutes prior to 1930. The legislative history of the Plant Protection Act of 1930 or of the Plant Variety Protection Act, referred to in dissent, does not establish that Congress thought it was overcoming an objection to plants as unpatentable solely because they were “alive.”
If Congressional intent must be sought, I would look to its primary source — the words of the statute itself. The Constitution grants Congress the power to recognize the exclusive rights of inventors in their discoveries for a limited time to encourage progress in the useful arts. Acting under that grant, Congress has provided that a patent shall issue on a “manufacture” or a “composition,” where, as here, the invention meets the criteria established in the statute. It would thus in this case defeat the fundamental purpose of the Constitution, and of the patent laws enacted thereunder, if we were to interpret the statute as though it included the word “dead.”
Similarly, analogy to oranges unfairly and unjustly resurrects the “product of nature” issue, which all parties had thought was settled. That question is not before us.
As with Fulton’s steamboat “folly” and Bell’s telephone “toy,” new technologies have historically encountered resistance. But if our patent laws are to achieve their objective, extra-legal efforts to restrict wholly new technologies to the technological parameters of the past must be eschewed. Administrative difficulties, in finding and training Patent and Trademark Office examiners in new technologies, should not frustrate the constitutional and statutory intent of encouraging invention disclosures, whether those disclosures be in familiar arts or in areas on the forefront of science and technology.
If the oil degradating 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.