dissenting.
I do not share the majority’s conclusion that the Supreme Court’s opinion in Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451, 198 USPQ 193 (1978), sheds no light on these cases. By concentrating on the literal statements of the Court, including the Court’s quotation from its opinion in Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531, 92 S.Ct. 1700, 32 L.Ed.2d 273, 173 USPQ 769, 774 (1972), the majority has missed the essential thrust of the Court’s opinion that, recognizing that Congress could not foresee all new developments in technology and that 35 U.S.C. § 101 should be broadly construed, where there is a basis for substantial doubt over the intent of Congress regarding the breadth of the language in the statute, the Court will await a “clear and certain signal from Congress” on the subject.
I submit that a basis for substantial doubt, at least, exists over whether organisms (or microorganisms) developed by inventors were intended by Congress to be embraced by the words “manufacture” or “composition of matter.” Previously stated 1 are my reasons for believing that the Plant Patent Act of 1930 [ch. 312, 46 Stat. 376] and the Plant Variety Protection Act of 1970 [84 Stat. 1542], alpng with their accompanying legislative history, clearly establish that Congress did not intend that any organisms (which would include microorganisms), other than the plants2 covered by those Acts, be within the scope of 35 U.S.C. § 101.
If Congress intended otherwise, there would have been no need to enact such legislation, and there is a basic presumption that Congress does not legislate unnecessarily. See Platt v. Union Pacific Railroad, 99 U.S. 48, 58, 25 L.Ed. 424 (1878); In re Finch, 535 F.2d 70, 71, 190 USPQ 64, 65 (Cust. & Pat.App.1976); United States v. C. J. Tower & Sons, 44 CCPA 1, 5, C.A.D. 626 (1956); Skovgaard v. The M/V Tungus, 252 F.2d 14, 17 (CA 3 1957), aff’d, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959); United States v. Korpan, 237 F.2d 676, 680 (CA 7 1956), rev’d on other grounds, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957). Both the majority and concurring opinions fail to point to anything that would rebut that presumption.
The majority and concurring opinions stress one aspect of the 1930 Act, namely: under then-existing law it was not seen how a plant could be described in a written document to comply with the “written description” requirement of section 4888 of the Revised Statutes (now 35 U.S.C. § 112), and so the substance of what is today the first sentence of 35 U.S.C. § 162 was added to the law. However, this addition to the law was merely ancillary to the extension of the patent law to plant inventions by the provision of what is today 35 U.S.C. § 161 (“Patents for Plants”). And it is to this extension of the patent law that the above-stated basic presumption applies — a point which the majority and concurring opinions fail to address. The 1930 Act amended section 4886 of the Revised Statutes to read:
Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexuallv reproduced any distinct and new variety of plant, other than a tuber-pronagated plant . . . may, upon payment of the fees required by *1000law, and other due proceeding had, obtain a patent therefor. [Additional matter underscored.]
Section 4892 of the Revised Statutes was amended to read:
The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement, or of the variety of plant, for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used; and shall state of what country he is a citizen. [Additional matter underscored.]
The 1930 Act also amended section 4884 of the Revised Statutes, singling out asexually reproduced plants for patent protection. If Congress had intended the words “manufacture” or “composition of matter” in sections 4886 and 4892 of the Revised Statutes and their predecessors to embrace organisms (or microorganisms), enactment of the above amendments would have been unnecessary. The same basic presumption applies with respect to enactment of a 1954 amendment to Section 161 (ch. 1259, 68 Stat. 1190)3 and with respect to enactment in 1970 of the Plant Variety Protection Act. Thus, the majority and concurring opinions are forced into the untenable position of maintaining that Congress — not once, but thrice — enacted needless legislation.4
The majority opinion emphasizes that the Plant Patent Act was concerned only with plants. This completely misses the point. If section 4886 of the Revised Statutes did, indeed, embrace organisms (and microorganisms), then why would Congress needlessly legislate coverage for organisms known as “plants”?
In both the House and Senate Committee Reports accompanying the bills that became the Plant Patent Act,5 after quoting from the then-existing patent laws as applying to “any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” the following statement appears:
There is a clear and logical difference between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral.
Furthermore, there is no apparent difference, for instance, between the part played by the plant originator in the development of new plants and the part played by the chemist in the development of new compositions of matter which are patentable under existing law. Obviously, these new compositions of matter do not come into being solely by act of man. The chemist who invents the composition of matter must avail himself of the physical and chemical qualities inherent in the *1001materials used and of the natural principles applicable to matter. . . . The same considerations are true of the plant breeder. He avails himself of the natural principles of genetics and of seed and bud variations.
But even were the plant developer’s contributions in aid of nature less creative in character than those of the chemist in aiding nature to develop a composition of matter which has theretofore been nonexistent . . . nevertheless the protection by patents of those engaged in plant research and discovery would not be beyond the constitutional power of Congress. [Emphasis added.]
Thus, Congress recognized the dichotomy of animate and inanimate inventions and decided to extend patent protection for animate inventions, but only to asexually reproduced plants.6 The nature of organisms, whether microorganisms, plants, or other living things, is fundamentally different from that of inanimate chemical compositions.
Accompanying the hearings on the proposed plant patent legislation was a letter from the Commissioner of Patents expressing some doubt over the constitutionality of providing for a patent grant on a new plant variety, when the plant is reproduced by operation of nature, aided only by the act of the patentee in grafting it by usual methods. The committee reports, stating that “the protection by patents of those engaged in plant research and discovery would not be beyond the constitutional power of Congress,” show that Congress did not share the Commissioner’s doubt.7 The Commissioner’s recommendation that the legislation take the form of a supplement to section 4886 was not adopted, as can be seen from the amended sections 4886 and 4892 quoted earlier in this opinion.
It is true that, as the majority opinion states, the Plant Patent Act was enacted after section 4886 of the Revised Statutes had been enacted, and that this is not as strong evidence of Congressional intent underlying section 4886 as contemporaneous enactment would have been. However, such subsequently enacted legislation is, nonetheless, entitled to “great weight in statutory construction.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Glidden Co. v. Zdanok, 370 U.S. 530, 541, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). More importantly, when the patent law, including section 4886, was codified by the Patent Act of 1952 [ch. 950, 66 Stat. 792] into title 35 of the United States Code, the statutory law, judicial precedent, and legislative intent (including that expressed in connection with the Plant Patent Act of 1930) were all carried forward into the codification.8 See Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); 82 C.J.S. Statutes § 276 (1953). See also Muniz v. Hoffman, 422 U.S. 454, 469, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975). As well stated in 1A Sands, Sutherland Statutes and Statutory Construction § 28.10 at 327 (4th ed. 1972):
In case of ambiguity it is permissible to resort to the prior legislative history of the act, the form and language of the prior statute, prior interpretation, other legislation in pari materia and all pertinent aids to statutory construction in order to arrive at the true meaning of the code provision. [Footnote omitted.]
The majority and concurring opinions refer to a comment in the committee reports accompanying the bill that became the Patent Act of 1952, that, with reference to *1002section 101, “a machine, or a manufacture . may include anything under the sun that is made by man.” (Emphasis added.) However, they neglect to point out that this must be read in light of the later comment that the “next chapter collects the provisions relating to plant patents,” which in itself indicates that “anything under the sun that is made by man” is not to be taken literally.9 This court assuredly did not take the comment literally in its opinion ten years later in In re LeGrice, supra 301 F.2d at 939, 49 CCPA at 1139, 133 USPQ at 374, which recognized that under the Plant Patent Act of 1930—
The patent law, as shown by the Committee Reports, was extended to plant patents in order to stimulate interest in the breeding and commercial development of new and valuable plant species. [Emphasis added.]
If the patent law prior to the Patent Act embraced organisms, there would have been no reason for extending it to plant inventions.
The majority opinion says:
In short, we think the fact that microorganisms are alive is a distinction without legal significance and that they should be treated under § 101 no differently from chemical compounds.
we do not see the logic of allowing claims to processes which depend for their operation on a living organism while denying claims to the organism or a pure culture of it merely because it is alive.
Those are arguments to be presented to the Congress — not to the Court.10 Then, perhaps, a “clear and certain signal” will come from the Congress, which assuredly has the constitutional power to extend the patent law to organisms other than plants. As well articulated by Chief Judge Markey in his concurring opinion in In re McKellin, 529 F.2d 1324, 1333, 188 USPQ 428, 437 (Cust. & Pat.App.1976):
[T]he patent law is statutory. Our representative form of government requires that the enactments of its Congress must always be, at the very least, the starting point. There being no common law of patents, we should take care to fill the Holmesian interstices of the statute with judge-made law only under the gravest and most impelling circumstances.
For the above reasons and others set forth in my dissenting opinions referred to earlier, the decisions of the board should be affirmed.
. In my dissenting opinions in In re Chakrabarty, 571 F.2d 40, 45, 197 USPQ 72, 76 (Cust. & Pat.App.), cert, dismissed sub nom. Banner v. Chakrabarty, - U.S.--, 99 S.Ct. 44, 58 L.Ed.2d 94 (1978), and in In re Bergy, 563 F.2d 1031, 1039, 195 USPQ 344, 351 (Cust. & Pat. App.1977), vacated and remanded sub nom. Parker v. Bergy, 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed.2d 1145, 198 USPQ 257 (1978).
. As defined by Webster’s Third New International Dictionary 1731 (unabr. 1971), a plant is “any of numerous organisms constituting the kingdom Plantae.” (Emphasis added.)
. The purpose of this amendment was to “remove any doubt that the legislative intent of the Congress clearly means that sports, mutants, hybrids, and seedlings, discovered by persons engaged in agriculture or horticulture, should be patentable.” H.R.Rep. No. 1455, 83d Cong., 2d Sess. (1954); S.Rep. No. 1937, 83d Cong., 2d Sess. (1954), U.S.Code Cong. & Admin.News 1954, p. 3981.
. Both the Senate Judiciary Committee report (S.Rep. No. 91-1246, 91st Cong., 2d Sess. 3 (1970)) and the House Committee on Agriculture report (H.R.Rep. No. 91-1605, 91st Cong., 2d Sess. 1, U.S.Code Cong. & Admin.News 1970, pp. 5082, 5083 (1970)) accompanying the bill (S. 3070) which became the Plant Variety Protection Act stated:
Under patent law, protection is presently limited to those varieties of plants which reproduce asexually, that is, by such methods as grafting or budding. No protection is available to those varieties of plants which reproduce sexually, that is, generally by seeds. Thus, patent protection is not available with respect to new varieties of most of the economically important agricultural crops, such as cotton or soybeans. [Emphasis added.]
Thus, the Patent Act of 1952, as amended in 1954, was considered to cover only plants falling under 35 U.S.C. § 161, and 35 U.S.C. § 101 was obviously considered to cover no plants or other organisms whatsoever.
. H.R.Rep. No. 1129, 71st Cong., 2d Sess. 7-8 (1930); S.Rep. No. 315, 71st Cong., 2d Sess. 6-8 (1930).
. See In re LeGrice, 301 F.2d 929, 939, 49 CCPA 1124, 1139, 133 USPQ 365, 374 (1962).
. The same doubt was expressed by the Commissioner regarding the 1954 amendment to section 161, supra. This was rejected in the accompanying committee reports, supra note 3, which stated that “the committee is of the opinion that this type of legislation does have constitutional basis for its enactment.”
. It should be noted that no such carryover of legislative intent into a codification was present in Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958), cited in the majority opinion.
. The approach of the majority opinion here appears to be of the kind that Justices Jackson and Frankfurter (quoted in the majority opinion) criticized.
. The majority opinion points to a few instances over the years when, among the hundreds of thousands of patents issued, the Patent and Trademark Office has granted patents to organisms or microorganisms. There is no evidence that these were ever brought to the attention of Congress. Cf. Natural Resources Defense Council, Inc. v. NRC, 582 F.2d 166, 171-72 (CA 2 1978), and citations therein. The Commissioner’s actions in the cases before us clearly indicate his position that the grant of such patents arose from administrative error, and there is no showing that such administrative error formed a consistent pattern.