This cartoon is hopefully funny enough to make you chuckle. I could use a ergonomic office chair that reclines, is heated and gives a vibrating massage, but I am not sure I want to get involved with one that also comes equipped to provide electro-shock therapy. Not that I would shock myself, but you never can trust co-workers, can you?
What does this cartoon have to do with patent law or innovation? Plenty really. By far, most inventions are improvements upon other known devices or solutions. In fact, whenever I teach patent law courses I tell students that in their career as a patent attorney they are unlikely to ever come across a pioneering invention, which I will define as an invention that is the first of its kind. Even Thomas Edison, the most prolific inventor in US history, rarely came up with pioneering inventions. What Edison had the knack for was taking something that someone else had come up with and making it extraordinarily better.
Frequently I am asked whether you can take a component from one product and put it together with a component from another product and file a patent application. The answer to that question is yes, provided that the combination that you have come up with is considered new (i.e., never before done) and non-obvious (i.e., would not be considered to be merely a common-sense based combination). Now those familiar with patent law know that I just condensed hundreds legal principles and decisions into a single sentence in defining what is new and nonobvious, but the truth is for the average inventor nuanced understanding of what patent law treats as new and nonobvious is not required. Ask yourself whether the identical invention has ever been made before and whether others in the relevant technical field would consider it a trivial or common sensical combination of parts. If you are honest with yourself you will be about 70% of the way to deciding whether filing a patent makes sense. If you have a patent search done and are honest with yourself then you are 85% of of the way to deciding, provided of course the invention has market possibilities, which is another story for another day.
Returning to our electro-shock chair, this is a combination of parts known to exist. These combination of parts likely result in a device never before made, which is likely a safe assumption so lets go with that in lieu of doing a patent search, although you may want to give it a whirl and see what you find. For information on how to do a patent search see Patent Searching 101. In any event, for purposes of this discussion let’s proceed assuming for now that this invention would qualify as being novel, and therefore satisfying the newness requirement.
The real question then becomes whether the invention is nonobvious. This is, in fact, the question that is most important in most patentability assessments. So what do you think? Much of the invention seems like it would be expected to go along with an office chair, namely the ergonomic design and certain other visible features. The heated seat and massaging maybe are different for an office chair, but are well known to exist in some chairs, as is the reclining feature, so even though we may not be able to find all those features in an office chair they could be found in chairs, so the relevant someone would find those to be obvious, but the electro-shock feature seems to scream non-obvious to me, how about you?
In truth no one can give you a guarantee that any particular invention will be nonobvious, particularly now given that the Supreme Court changed obviousness law less than 8 months ago in KSR v. Teleflex. But what can be said is that the less likely a certain combination would be made the more likely the invention is nonobvious and can be patented. Unfortunately, it is not merely enough to say it has never been done before, but if it hasn’t been done before and the invention solves a particular problem that could help as well.
Given what I have seen patented in the past, a chair with integrated radio, a pillow with integrated radio, a hair brush with integrated radio… do you see a pattern? I would have to say this device is probably nonobvious, but then the next question needs to be to yourself. What do you plan to do with a patent if it issues, and will anyone want to buy the product? These are not patent questions, but extremely important to consider. But that is another story for another day.
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