So much has been made about the United States Supreme Court’s decision in KSR v. Teleflex, which happened just over 2 years ago. Occasionally I like to take a look at how the Patent Office is handling KSR. Admittedly, this is not a scientific study, and is more aimed at having fun and perhaps also explaining so we never forget just how absurd the Supreme Court’s decision in KSR actually was. Those familiar with the KSR decision and history will recall that the non-patent experts on the Supreme Court, including Justice Antonin Scalia who openly admitted he didn’t understand patent law during oral arguments — calling patents “gobbledygook,” decided to completely do away with an objective, understandable and repeatable test in favor of a completely subjective test without any concrete boundaries. Yes, in their infinite wisdom the Supreme Court decided that the law of what is obvious should be conducted on a case by case analysis and an invention is obvious if it is “common sense.”
Too bad Scalia and the Supremes didn’t understand that what is common sense to one might actually not be common sense to others. Too bad they also didn’t take time to consider that the 6,000 patent examiners working for the USPTO are not attorneys, and follow the dictates of rules laid out for them. But how do you get any uniformity with 6,000 examiners all applying an undefined understanding of “common sense.” Apparently the Supreme Court also didn’t understand that the US Constitution also requires those similarly situated to be treated similarly, otherwise there is illegal and unconstitutional discrimination. Finally, the Supreme Court’s decision in KSR actually sets forth a rule that says that when an inventor attempts something that they thought would or might work, the invention is obvious. So now, only those things embarked upon by an inventor where the inventor thought it was foolish and/or could never work will result in inventions that can be patented. Completely absurd!
Thankfully, the Patent Office seems to be applying KSR in a way that… well… completely ignores the Supreme Court in at least some cases. This is not meant as a criticism of the USPTO, but rather a compliment. The real trouble with KSR does not seem to be the Patent Office, but will the courts follow the Supreme Court? If the courts do follow the Supreme Court then virtually nothing is patentable, at least not when there is any motivation to try and invent. You have to be an “accidental inventor” if KSR is applied strictly, which means nothing can be patented moving forward. But how long will it take the Federal Circuit to overrule the Supreme Court, like they have frequently done in so many areas of patent law over the years? Stay tuned! Time will tell, but for now, here are a few recently issued patents that seem to have been granted such that KSR was hardly considered by the PTO.
Head covering and insignia display assembly
US Patent No. 7,536,731
Issued May 26, 2009
Filed June 14, 2004
This invention is directed to a head covering and insignia display assembly including a primary member constructed of a foldable weather resistant material and structured to comprise a sports helmet configuration. Additionally, the primary member comprises a unitary construction so as to eliminate the complex and expensive composite construction requirements associated with known devices. In one embodiment, the primary member comprises a unitary construction of fleece, or another readily foldable material including, for example, leather, flannel, or wool, just to name a few, to provide the user with at least some degree of protection from the elements, such as cold temperatures.
Bidet based liquid dispenser and blow-dryer system
US Patent No. 7,543,339
Issued June 9, 2009
Filed February 28, 2008
The invention is designed to take advantage of the unused space that exists directly above the average toilet water tank for the placement of a modular bidet system. This invention utilizes a unique modular cabinet designed to be strategically placed onto the top rim of a standard toilet’s water tank. It is shaped to blend in with the design of the water tank for aesthetics. The bottom of the cabinet has guides so that the cabinet can fit well on a variety of water tank sizes. The top of the cabinet is a rim just like that of the water tank to allow the original toilet’s lid to be re-installed. This allows the stock toilet lid to be reused so that the general design of the toilet can be maintained and to help the cabinet to blend into the existing bathroom decor. This modular design allows other modular cabinets or special purpose cabinets to be installed onto it. The cabinet can have its own custom lid as well. This modular cabinet provides the housing and space for the components of the bidet system, which includes a bidet device with a hose reel and water sprayer, a cartridge based liquid dispenser for dispensing of cleaning solutions or medicines to the bidet sprayer, and a blow-dryer. This is an apparatus that can either be attached to an existing toilet as an aftermarket product or manufactured in combination with a new toilet.
US Patent No. 7,543,511
Issued June 9, 2009
Filed February 18, 2008
This invention is a protective enclosure, such as a visor, for use on a dog (or other animal) comprising a body foldable into the general shape of the animal’s head, wherein the body includes an upper portion adapted to fold around the animal’s snout so as to form a front opening for the animal’s mouth and nostrils, and a rear portion adapted to be foldable over the rear of the animal’s head so as to form one or more ear openings, and wherein said body includes a compliant internal spacer adapted to hold the enclosure snugly in engagement with the animal’s head when applied to the animal.
Convertible sock/slipper legwarmer
US Patent No. 7,533,424
Issued May 19, 2009
Filed August 8, 2006
This invention relates to apparel for covering a foot, leg and/or a portion thereof may include a sock-like tube made of wearable material that is sized to fit over the foot and the leg. The sock-like tube may have a closed end, an open end, and an opening near but not at the closed end that is sized for the foot to pass through.The opening may extend across approximately half of the sock-like tube. The opening may be positioned such that, after the sock-like tube is placed over the foot and leg, the opening is behind the beginning of the toes and in the front of the ankle. The opening may be formed by overlapping portions of material. The sock-like tube may be constructed from three pieces of material. The three pieces of material may each have a width that is equal to approximately half of the circumference of the sock-like tube. The first piece may have a length that is approximately equal to the length of the sock-like tube. The second piece may have a length that is more than half the length of the sock-like tube but less than the length of the sock-like tube. The third piece may have a length that is less than half of the length of the sock-like tube. The length of the second piece plus the third piece may be greater than the length of the first piece.
I am not saying that these inventions are not real inventions, and I am not saying they are obvious in any real sense, although the helmet does make me scratch my head a bit. Nevertheless, with the nonsensical test for obviousness announced by the Supreme Court in KSR v. Teleflex it is hard to see why there would not be motivation to try and expect success, which literally should mean that these inventions, and virtually all others, are obvious. Of course, the Supreme Court decision in KSR is in direct conflict with 35 U.S.C. 103, which says in relevant part: “Patentability shall not be negatived by the manner in which the invention was made.” Hopefully Congress will eventually get around to undoing KSR and amending 103, perhaps what they need to amend 103 like this: “Patentability shall not be negatived by the manner in which the invention was made. P.S. We really mean it!”