The USPTO is Going Soft on Patent Applications

by Jason Fischer (follow me on twitter)

Kerry Gorgone reports on the touching story of a pint-sized “inventor” who “came up” with the idea for attaching an IV bag pole to a kiddie car, so that hospitalized children can play while getting their meds. It seems the kid filed a patent application for the device and is charging a licensing fee for toy manufacturers to build the thing.

As heartwarming as this particular story may be, it provides a textbook example of an obvious device, which means that it should not be entitled to patent protection. When an “inventor” merely “‘arranges old elements with each performing the same function it had been known to perform’ and yields no more than one would expect from such an arrangement, the combination is obvious.” K.S.R Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740 (2007) (quoting Sakraida v. Ag Pro, Inc., 96 S. Ct. 1532 (1976)). Providing patent protection for obvious devices does not further the constitutional mandate of our patent system — to promote the progress of science and the useful arts. K.S.R. Int’l Co., 127 S. Ct. at 1746. In fact, it weakens that system and provides plenty of ammunition for those who would criticize it and demand reform.

The fact that this device is used by sick children should not provide a “free pass” to patentability. I was shocked to read the examiner, Kevin Hurley’s office actions, finding not even a mention, let alone some analysis, of 35 U.S.C. ยง 103 as it applies to this device. See Image File Wrapper for U.S. Patent No. 7,374,228.

@Lawminatrix: Good luck with your office chair/beer keg thingy, but you might have a better chance, apparently, if you can describe your device as useful for baby kittens, butterflies, and/or bunny rabbits.

5 Responses to The USPTO is Going Soft on Patent Applications

  1. KWW says:

    Hmmmm, I know Randazza isn’t a patent attorney, but his legal career already includes taking a companion animal away from a sick child, so initiating an ex parte reexamination of this patent might be the perfect compliment.

  2. Tanner Andrews says:

    Many things which you might think of as not patent subject matter may be approved. For instance, see #6,360,693 (dog toy).

  3. jfischer1975 says:

    Just because they’ve done it before, doesn’t make it right when they do it now and in the future. Issuing weak patents is bad for everyone.

  4. Phil&Susanne says:

    Do these ‘patents’ ever stand up in court ? We see ‘patents’ issued for design/engineering concepts, details, attributes, combinations of them that have long been published, long been in use, with all necessary details fully shared with the public. Ideas in the public realm should be off limits !?
    Just saw a case for national and then ‘world-wide’ patent protection for geometries and usage that are both centuries old in their roots and usage and have been periodically updated throughout recent times in full public view and with full public access/repeatability of all relevant details. And yet, it seems that the examiners granted ‘protection’. Is it incompetence, lack of research-depth, making some patent-attorneys well-off but won’t stand muster when pushed ??

  5. Acro says:

    That’s it, I am filing for a patent for a textual blog generator of entertaining yet educating law topics, interlaced with external reference commentary, to be used in legal blogs! :) I am going to roll in the dough!

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