Frequent readers of IPWatchdog.com know that on holidays I look for appropriate patents to profile that fit within the festive spirit of the holiday. Call me a geek if you like, you wouldn’t be the first and I’m sure not the last, but what better way to say “happy holiday” than with a patent? Alright, Hallmark® I am not, but what I am is a purveyor of multiple things patent, and one of those things is a little bit of fun and hopefully some learning as well.
What better way to celebrate the Fourth of July, our Independence Day in the United States, than enjoying a fireworks display? And where better to have a fireworks display than at Disney World in Orlando (really Kissimmee), Florida? But I am getting ahead of myself. In order to properly tie this interesting patent to celebration of our Nation’s Independence from Great Britain, we need to take a step back and spend a moment explaining the connection between July 4th celebrations and fireworks.
It is hardly news to anyone in the United States that fireworks are associated with a proper celebration of July 4th. But why exactly do we use fireworks to celebrate the 4th of July? The reality is that we do it because fireworks are known to be festive in nature and appropriate to celebrate any special occasion, which back in 1777, the first celebration of our Independence, was very special. The young nation didn’t know for several years whether its independence would actually be won, so the fact that it had been a year and the Nation still endured, separated from the British Empire, was worth celebrating for sure.
John Adams famously wrote in a letter to his wife, Abigail, on July 3, 1776:
The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.
Adams was off by a couple days, believing that the day the Lee Resolution was ratified by 12 of the 13 colonies would be the day of celebration as opposed to the day the document was finalized and signed. The Lee Resolution, named after Richard Henry Lee of Virginia, began:
Resolved: That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.
So did Adam’s prediction of fireworks (i.e., illuminations) prove accurate or did they occur because he wrote this? Given that fireworks were well known and originated in China (some say India) and used widely to celebrate important occasions, it seems fair to say Adams predicted accurately the use of fireworks to celebrate Independence Day.
The fact that our National Anthem, written by Francis Scott Key, contains reference to “rockets red glare” and “bombs bursting in air” certainly only enhance the relevance of fireworks to celebrate the 4th of July. Of course, the lyrics came to Key after observing a vicious and prolonged overnight assault on Fort McHenry in Baltimore, MD. Despite an unyielding British attack the Fort held. See Origin of the Star-Spangled Banner.
So for many reasons fireworks are, have been and likely always will be inextricably intertwined with our celebration of the 4th of July.
For those still reading you are probably wondering what this has to do with patents? Up until now absolutely nothing. The fireworks patent just gave me an opportunity to tell a story while feeling in a patriotic mood. But throughout the story I did drop some patent language, did you notice? Yes, patent attorneys actually do talk about things being “inextricably intertwined,” thanks to that being relevant to determining whether a restriction requirement is appropriate. You see, the patent examiners can say we have more than one invention disclosed in a patent application (a no-no) if the inventions are independent or distinct. The MPEP defines “independent” as “not dependent” (I kid you not) and distinct inventions are those that are not inextricably intertwined. Please also take notice of the multiple use of the world “independent.” Coincidence? Of course not!
But for those who are yearning for some substantive patent learning, on August 23, 1994, The Walt Disney Company was awarded (as assignee) U.S. Patent No. 5,339,741. Subsequently the same disclosure yielded U.S. Patent No. 5,627,338 and U.S. Patent No. 5,526,750. Over the years Disney was awarded other fireworks related patents, but these three are interesting because they relate to the precision display of fireworks and Figure 26 shows fireworks being set off with the explosions approximating the familiar Mouseketeer head-wear outline. (see image above labeled FIG. 26)
I am not a fan of including an image that shows what the prior art its (see image above labeled FIG. 25), but there is no denying that sometimes it can be extremely helpful to quickly point out to the reader, and presumably patent examiner, how the prior art differs with the invention in question. Here there seems to be little harm since fireworks have been known for hundreds, if not thousands, of years, and it is all but certain that the reader, including patent examiner, has seen fireworks before. So it isn’t as if you could pull one over on the patent examiner by pretending to have invented the first fireworks display. So why not use well known prior art to your advantage? Probably not a problem here, but like salt or garlic on a steak, use sparingly for best results!
If you actually read these patents you will notice that the Background of the Invention is rather long (nearly 4 full columns) and in a post KSR v. Teleflex era Backgrounds have become enormously short. In fact, over time they became shorter and shorter as a result of the Courts saying that if you define the problem you are trying to solve too well in your patent application your invention might just become obvious. How asinine really! The fact that you have the audacity to write so that the prior art and full glory of the invention can be comprehended easily shouldn’t have anything to do with whether your invention is obvious, but sadly it does. Talk about ridiculous and absurd!
The standard is SUPPOSED to be — was the invention obvious at the time of invention. The standard is NOT SUPPOSED to be — did the patent attorney do such a good job writing the patent application that the invention SEEMS obvious after reading the patent application. NEWSFLASH… OF COURSE IT IS SUPPOSED TO SEEM OBVIOUS AFTER READING THE PATENT APPLICATION!!!! Isn’t everything obvious after you learn about it? For the love of Pete!
Well, I digress, at least somewhat. I am passionate about patent law, and I am passionate about America. Not that I am or ever will be thought of in the same way as any of our Founding Fathers, but I would have to think that those of us who show extreme passion in whatever our field of endeavor would have pleased our Founding Fathers.
The fact that we have been unable to screw up their grand experiment after 234 years is a testament to the brilliance of our Founding Fathers, and to the passion of a great many others over the years. We have been afforded a special quality life through the sacrifice of those who have come before us, and the daily sacrifices of those serving in our military.
So on Sunday when you are watching, or hearing, fireworks perhaps you will stop and remember that Disney patented a precision firework display. If this article has been successful, hopefully you will remember a whole lot more of a different nature.
Happy Birthday America!