Ah, a dildo patent case. Just what the doctor ordered. A dildo patent case written by Posner? Now there’s something that makes a great capstone to a blogging week.
In Ritchie v. Vast Resources, __ F.3d __ (Fed. Cir. 2009) Judge Richard Posner was sitting by designation at the Federal Circuit. And Posner being Posner writes:
The plaintiffs’ patent (U.S. Patent No. Re 38,924, the 2005 reissue of No. 6,132,366, filed on April 1, 1999) claims a “sexual aid…fabricated of a generally lubricious glass-based material containing an appreciable amount of an oxide of boron to render it lubricious and resistant to heat, chemicals, electricity and bacterial absorptions.” Glass that contains boron oxide is called “borosilicate glass.” The “silicate” is a reference to the fact that like most glass, the predominant component of borosilicate glass is silica. By “lubricious”—a word whose primary meaning, appropriate for a sexual device, is “lecherous”—the patent means only “slippery,” which is the secondary meaning of the word. The patent’s use of the word in that sense is confusing, because glass is smooth rather than slippery. But what is meant is that the glass, because it contains oxide of boron, is smoother than soda-lime glass and therefore becomes slippery with less lubricant than a device made out of soda-lime glass. The patent’s use of the term “appreciable amount” of oxide of boron is also troublesome, because it is vague. But apparently all that is meant is that the plaintiffs are claiming that their invention uses glass that has the amount of boron oxide usually found in borosilicate glass. (Op. at 2-3)
The fact that nobody made a dildo out of borosilicate glass before does provide some support for the fact that this was a patentable and non-obvious invention. However, it isn’t enough. Posner makes a few fun analogies, but his best is when he reaches back into the nineteenth century:
And if more is required to make our point, there is the venerable case of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), cited approvingly in KSR Int’l Co. v. Teleflex Inc., supra, 550 U.S. at 406, 415, which denied patentability to an invention consisting of the substitution of a clay or porcelain knob for a metallic or wood knob in a doorknob (the doorknob itself, as distinct from the knob on the end of it, being an assemblage of knob, shank, and spindle). (Op. at 6)
Heh heh… “wood”… heh heh… heh… “knob”.
I really burst out when I read “shank” and “knob” in a patent case on dildos. Thanks for the commentary.
I for one am happy this case turned out the way it did. I have been following it for some months now. This a clear cut case of a company whose revenues are falling, and are suing to make up the loss. While an easy and understandable approach to knock out competitors, I don’t believe the company had a leg to stand on. Prior to this, there were glass dildos, being made, but they were simply made from a different type of glass. Borosilicate glass (aka Pyrex ) already existed, all they did was put it into another shape. LOL…heck they didn’t even invent the shape. They just copied God’s work.