Unequal Treatment at the US Patent Office

Something is seriously wrong at the United States Patent & Trademark Office, and it is becoming increasingly difficult to believe anything other than that there is ongoing unequal treatment of inventors who file patent applications. In the United States everyone is supposed to enjoy the same rights and privileges, and this concept manifests itself in the ideal that everyone is entitled to equal treatment under the laws. As the United States Supreme Court has explained, the Fourteenth Amendment requires that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. When those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions. When it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a rational basis for the difference in treatment. I see a lot of unequal treatment of patent applicants, and I see absolutely no rational basis for the difference, so I must conclude that the Patent Office is violating the law.

There is a two tier system at the Patent Office that is not supposed to exist. The patent laws are supposed to be applied evenly, not applied in some cases, not applied in others and inconsistently applied depending upon the patent examiner assigned to an application. Yet, it is hard to explain what is going on at the Patent Office these days when applicants are denied patent protection and others are awarded patent protection for inventions that are clearly obvious. The Supreme Court’s decision in KSR v. Teleflex was supposed to make it more difficult, if not completely impossible, for ridiculous inventions to be patented. The sad truth, however, is that has not happened. Every week there are ridiculous, obvious patents that are issued and on Tuesday, November 18, 2008, there were several that just make you stop and wonder exactly what was going on and why the patent examiner decided to issue the patent.

Did you know that on Tuesday, November 18, 2008, a carry out food container was patented? Of course not, you would never think that something that has been known for so many years could ever be patented, but sadly it was. This carry out food container, pictured below, looks like the many carry out food containers you have seen used at restaurants everywhere for so many years.

This did not deter the Patent Office from issuing the patent on the invention though, even though it should have. If you take the time to read the patent, US Patent No. 7,451,889, you realize that the sole inventive contribution is that this particular food carry out container has a piece of wax paper already attached to the container so those who work at restaurants do not have to scurry around and hunt aimlessly for wax paper to use to cover the food they put into the carry out food container. I wish I were joking, but I am not.

How does a patent on something so trivial as a well known food carry out container get patented simply because you add an attached piece of wax paper? The answer is that this patent should never have issued, at least not if the patent examiner had been following the law, and that is what the problem is. You will find patents like this getting issued all the time, but then inventors and corporations have trouble getting meaningful, commercially relevant, technical advancements patented because other examiners take their jobs more seriously and perhaps even over reject inventions for fear of something that might be trivial being patented. There is a divide at the US Patent Office and it seems to me that it is time that someone started taking the Office to task because they need to follow the law like everyone else. They need to respect the Constitutional mandate that everyone be treated equally under the law, as guaranteed by the Fourteenth Amendment to the US Constitution.

So what should the examiner have done? Short of simply not allowing a patent in this case the examiner might have considered actually applying the law of obviousness. I am not a big fan of the Supreme Court’s pronouncement in KSR v. Teleflex, because I think it is naive and simply wrong. It went against decades of law developed in the patent area, and actually went directly against what the relevant statute says. There was a time when inventions were not allowed unless there was a so-called “flash of creative genius,” and that led to little or nothing being patented. The Congress then said that the mode of invention ought not play a role in determining whether an invention is obvious. Unfortunately, what the Supreme Court said in KSR was that if inventions are within the common sense of someone skilled in the area then they are not inventions at all and not patentable. They also said that if something is obvious to try, then you cannot get a patent. So we are left with an ill-defined “common sense” test, and you are only supposed to get a patent if you had no reason to believe what you would do would work. But that begs the essential questions. Whose common sense really matters, and why would anyone try and do something that they thought would fail?

Regardless of the wisdom of what the Supreme Court did in KSR, they undeniably attempted to make it much harder to get a patent and to give the patent examiners much more reason to reject ridiculous inventions. It certainly has gotten harder to get patents issued for real inventions, but it certainly does not seem that it has gotten harder to get patents issued for nonsensical inventions. All the while the Patent Office continues to have a backlog of unresolved applications, which at the end of 2008 topped 1.2 million applications. The Patent Office is not only treating similarly situated individuals differently in violation of the law, but they are also spending needless time addressing stupid inventions while meaningful inventions languish. This is not only terrible, it is recklessly stupid given our current economic crisis.


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