Over the last several years the patent allowance rate has fallen from about 70% of applications becoming patents to a low of 42% of patent applications becoming issued patents. During this same time the Patent Office has continued to proclaim that quality has risen, which everyone in the industry knows to be false. The real tragedy is that the Supreme Court was supposed to have solved the problem of stupid patents with its decision in KSR v. Teleflex. I am not a fan of the Supreme Court’s ruling because obviousness is now based on common sense, which means we might as well be back to the requirement that an invention display a “flash of creative genius,” which was specifically legislated out of the patent laws in 1952. But if the Patent Office really has achieved unprecedented quality, and the Supreme Court has staked the deck against those inventions that are just ordinary, uninspired and not new, then we should not have stupid patents issued any more, right? Think again! At a time when many start-up companies cannot get patents issued and are unable to attract investors, not much has changed on the silly invention front.
From time to time it is fun to take a look at some issued U.S. patents and consider what, if any, effect the Supreme Court’s decision in KSR v. Teleflex has on what the Patent Office is now issuing. At least as far as the Patent Office is concerned the uproar surrounding the KSR decision seems to be much ado about nothing, or perhaps I should say insofar as silly patents are concerned KSR and alleged quality reforms at the USPTO has done little regarding silly patents.
Then there is the upright vacuum cleaner, US Patent No. 7,313,845, which issued on January 1, 2008. Put aside for the moment that while we were all recovering from holiday celebrations that the Patent Office issued a patent on a national holiday. How is this invention not within the common sense of, well everyone? If you read the patent and dissect the claims it seems that the inventive contribution to the field is that this particular vacuum cleaner has 2 power switches.
How about garments having inside out appearance, US Patent No. 7,350,242, which issued April 1, 2008. Yes, that is April Fools Day in 2008. You just can’t make this stuff up! Reality is far stranger than fiction could ever dream.
What about a food container and bib, US Patent No. 7,360,256, which issued April 22, 2008.
One of my personal favorites is a carry-out food container, US Patent No. 7,451,889, which was issued on November 28, 2008. It seems the innovation here is that the piece of wax paper is pre-attached to the container. So if you take a well known carry-out food container and attach a piece of wax paper you could be infringing. This is offensive beyond words, particularly given that real innovations and inventions are held hostage at the Patent Office and never receive patents.
Another personal favorite of mine is the finger mounted insect dissuasion device and method of use, US Patent No. 7,484,328, which issued on February 3, 2009.
In light of the Supreme Court’s decision in KSR can anyone tell me how any of these are patentable? Aren’t all of them obvious? How is it possible that these are not within the common sense knowledge base of someone of skill in the art? How are these not obvious to try, which after many years of not being the appropriate test is unfortunately the test that the Board of Patent Appeals and Interferences applies. I don’t mean to beat up the Board, I think that they are right. As a result of KSR the test should be is an invention obvious to try, and if it is then no patent should be awarded. But why didn’t the Patent Office apply KSR or quality review in these cases? If these patents are awarded then patents should be awarded based on every application, otherwise there is an equal protection argument because similarly situated applicants are being treated differently, and that is unconstitutional.