One of the most important questions in contemporary design patent law is how to interpret the phrase “article of manufacture” in 35 U.S.C. § 289. While there has been much discussion about what Congress intended when it enacted the predecessor to § 289 in 1887, there has been little discussion about what the phrase “article of manufacture” meant in 1887. This Article aims to fill that gap. It examines the relevant statutory text, late nineteenth-century patent treatises, Patent Office decisions, and court cases. Based on this evidence, this Article concludes that in 1887, the phrase “article of manufacture” was not a synonym for “product” and did not refer to any “thing made by hand or machine.” Instead, “article of manufacture” was a term of art that referred to a tangible item made by humans — other than a machine or composition of matter — that had a unitary structure and was complete in itself for use or for sale. This historical evidence should be considered in evaluating arguments about the statute’s “plain meaning” and the original congressional intent. It also undercuts both the Federal Circuit and Supreme Court interpretations of the phrase “article of manufacture.” Additionally, this evidence demonstrates that, because machines were not considered “articles of manufacture” in 1887, the 45th Congress did not intend the results decreed by the Federal Circuit in it 2015 decisions in Apple v. Samsung and Nordock v. Systems.
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