dissenting.
I find the majority’s statement of the issue in this case to be ambiguous and I disagree with Chief Judge Markey’s broad statement of the issue. As I see it, the issue is whether applicant’s modification of a clearly unpatentable living organism is sufficient to render the resulting living organism statutory subject matter. The majority apparently bases its argument on the belief that the claimed organisms must fall into one of two categories — “products of nature” (“manufactures” of God or nature) or patentable subject matter (“manufactures” of man). The PTO admits that the modified organism does not fall into the product-of-nature category, because the organism is not naturally occurring.1 Therefore, the majority believes the modified organism must fall into the statutory subject *45matter category. But the dichotomy underlying this syllogism is not the law.
The law, as propounded by the Supreme Court, defines three alternatives. Between true “products of nature” and statutory subject matter or “manufactures” lies an intermediate category of things sufficiently modified so as not to be products of nature, but not sufficiently modified so as to be statutory “manufactures.” Therein are found the borax-impregnated oranges of American Fruit, note 1 supra, and, in my view, the organisms now before us.
The present case focuses on the degree and nature of modification necessary to convert an admittedly unpatentable living thing into statutory subject matter. The Supreme Court, in American Fruit, considered whether impregnating fresh fruit skins with borax to prevent molding changed the natural products into statutory subject matter. The Court stated that, in order to become statutory subject matter, the new article must possess “a new or distinctive form, quality, or property.” 283 U.S. at 11, 51 S.Ct. at 330, 8 USPQ at 133. There must be a “change in the name, appearance, or general character of the” natural product. 283 U.S. at 12, 51 S.Ct. at 330, 8 USPQ at 133. It is not enough that the new article is better adapted to the use for which the natural product was already suited. 283 U.S. at 12, 51 S.Ct. 328, 8 USPQ at 133. I read American Fruit as saying that a modified natural product does not become statutory subject matter until its essential nature has been substantially altered. The issue in the present case becomes whether the modification effected by appellant altered the essential nature of the starting material.
Applying the American Fruit rule to the modification of living organisms and to the case before us, I believe that the essential nature of the unpatentable organism with which applicant started was its animateness or life. Appellant has not changed this essential nature; he has not created a new life. Rather, he has merely genetically grafted an extra plasmid on to the organism and, thereby, made the organism better at cleaning up oil spills. While this improvement in oil digesting ability does exclude the new organism from classification as a mere product of nature, like the borax-impregnated orange which was a better commercial product because it had a longer shelf life, this improvement in the utility for which the unpatentable starting material was already suited does not change the essential nature of the starting material and does not make the modified thing statutory subject matter.2
. Contrary to Chief Judge Markey’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. Brogdex Co., 283 U.S. 1, 51 S.Ct. 328, 75 L.Ed. 801, 8 USPQ 131 (1930).
. I agree with Judge Miller’s thorough analysis of the legislative history.