Anticipate This!™ | Patent and Trademark Law Blog

They Invented What? (No. 170)

Posted in They Invented What? by Jake Ward on May 26, 2010

U.S. Design Pat. No. D274,350:  Fishing lure.

The ornamental design for a fishing lure, as shown.

JW Note:  I obviously have my upocoming annual fishing expedition to Ontario, Canada on my mind.  Do walleye like kitchen sinks?  I have a sinking (pun intended) suspicion that a Northern pike would not be deterred by a kitchen sink lure.

If any of our readers have other interesting fishing-related patents and applications to share, feel free to email them to me at  I’ll consider posting them for the next “TIW?”.

NBC “Harry’s Law” Trailer.

Posted in General Commentary by Jake Ward on May 25, 2010

JW Note:  Hat tip to Professor Crouch at Patently-O, who also identified the best quote (from a patent attorney’s standpoint, anyhow) being about 30 seconds into the clip.

Google Pac-Man Game.

Posted in Science and Technology by Jake Ward on May 23, 2010

Many of our readers had undoubtably  noticed that the Google “doodle” this past week was a playable Pac-Man game.  The purpose of the doodle was to honor the Pac-Man arcade game’s 30th anniversary.

Although the doodle was temporarily unavailable today (apparently due to the anniversary being over), it can now be found and played at Enjoy!

A Different Patent Law Proposal: U.S. Utility Models?

Posted in Statute Commentary by Jake Ward on May 21, 2010

JW Note:  This is a repeat of a post we originally wrote in November 2008.  However, we’ve been wanting to bring the topic up again ever since we read Hal Wagner’s article titled A “Driver’s License” Patent in March of this year.  Although there is a multitude of ways utility models could be established under the U.S. patent system, we agree that this proposal is a worthwhile strategy for reducing backlog at the USPTO, and would give applicants a further option for protecting intellectual property.  Maybe if we repeat the post often enough, it will be picked up in some future legislative incarnation of patent law reform!  Comments in support or opposition are welcomed.


It is safe to say that the U.S. patent system is overburdened and in need of improvements, notwithstanding the self-congratulatory tone of the U.S. Patent Office’s 2008 Performance and Accountability Report

In view of the state of the U.S. patent system, a number of patent law commentators have been tossing about potential solutions.  For example, Gene Quinn at IP Watchdog has proposed a number of fixes, including requiring a search prior to filing an application, requiring examiners to examine applications based only on art submitted by applicants, and forcing patent holders to pay for a thorough and complete examination of the patent before the patent can be sued on in federal court.  Likewise, Professor Crouch at Patently-O has has recently commented on the proposal of Tim Wilson (Senior IP Counsel at SAS US) that the sheer number of patent applications being filed creates many problems, and that the solution is to raise patent fees – as high as $50,000 for large corporate applicants. 

Since the IP blogosphere is brainstorming on ways Congress should change the U.S. patent system, we’d like to propose a different strategy: namely, Congress should develop laws establishing U.S. utility models.  A utility model is a form of IP protection very similar to a patent, except that it covers what can best be termed “incremental inventions” for a comparatively shorter period of time (typically 6-10 years for a utility model instead of 20 years for a patent).  The utility model is sometimes called a ”utility model patent”, “utility innovation”, “petty patent”, “innovation patent”, “minor patent”, or “small patent”.  Over seventy-five countries have utility model laws, including countries with well-developed patent systems such as Germany (a Gebrauchsmuster) and Japan.  Depending on the country, the utility model subject matter may be limited to inventions having a shape or structure, and may exclude plants, methods, materials, and chemicals. 

For sake of argument, we suggest that a U.S. utility model law allow applicants an opportunity to file a single application for both a utility patent and a utility model.  Applicants could be required to also submit a simple search report for the examiner’s consideration in determining if the invention meets the novelty requirements under U.S. law.  Upon a determination by the examiner that the invention is novel over the search report art and meets certain formal requirements, the application would be allowed for purposes of a utility model with, for example, a ten (10) year term (again, for sake of argument).  Applicants could then have the opportunity to pay for a more intensive search and substantive examination of the invention in relation to the obviousness requirements under U.S. law.  Should the examiner deem the invention non-obvious, Applicants would then receive an allowance for the utility patent with the conventional twenty (20) year term.  A utility model/patent owner would not be allowed to hold both a utility model and an utility patent for the same invention and, if successful in obtaining the utility patent, would be required to abandon either the utility model or the utility patent.

Examination under utility model standards would undoubtedly be less cumbersome on the U.S. Patent Office than examination under utility patent standards.  Many applicants who might otherwise try to slug it out for years in the U.S. Patent Office for a utility patent would be willing to instead take a more limited and less expensive utility model.  An invention covered by utility model, with possibility for conversion to a utility patent, should also be more marketable than a mere application to potential assignees or licensees of the invention.  Moreover, in light of the incredibly more stringent obviousness standard set forth in KSR v. Teleflex, a U.S. utility model would allow Congress to continue promoting “the progress of science and the useful arts”.  The addition of utility models to the U.S. patent system would encourage disclosure of both the conventional ”flash of genius” inventions (an awful term, we know, but you get the point), and technological improvements that are, while incremental in scope, nonetheless commercially valuable.  Just because an invention may seem silly or amusing to some (see any of our TIW? features), does not mean that the invention is without commercial value.

Comments from our readers are encouraged.  Let us know your thoughts!

They Invented What? (No. 169)

Posted in They Invented What? by Jake Ward on May 21, 2010

U.S. Pat. No.6,752,231:  Personal transportation system.

I claim:

1. An automotive vehicle having a pair of road wheels each rotatably mounted on a respective one of a pair of axially aligned stub axles; a trapeze frame, comprising a pair of spaced apart side arms and a horizontal bar mounted therebetween, rotatably mounted between said road wheels and depending from said stub axles; a weighted passenger compartment rotatably mounted on said horizontal bar and having a centre of gravity below said horizontal bar; a pair of powered drive motors each operatively connected to respective one of said road wheels; means to control said motors, mounted in said passenger compartment; braking means operatively connected to said road wheels; and means to temporarily reduce braking force in response to angular displacement between said side arms of said trapeze frame and said passenger compartment so as to prevent rotation of said trapeze bar about said axially aligned stub axles.


USPTO Opens Application Exchange Program to All Applicants.

Posted in Practice Commentary by Jake Ward on May 18, 2010

Per this press release yesterday at the USPTO:

USPTO Opens Application Exchange Program to All Applicants to Reduce Patent Backlog

“Project Exchange” Expanded and Extended to Enable All Applicants to Expedite Processing of a Pending Application in Exchange for Withdrawal of an Unexamined Pending Application

WASHINGTON – The Commerce Department’s United States Patent and Trademark Office (USPTO) today announced the expansion to all applicants of its “Project Exchange” program. Under the expanded Project Exchange, which will take effect with the publication of the Federal Register notice in the coming weeks, any applicant with more than one application, filed prior to the inception of the program, currently pending at the USPTO can receive expedited review of one application in exchange for withdrawing an unexamined application. The expanded Project Exchange will give all applicants with multiple filings greater control over the priority in which their applications are examined and enable priority applications to be examined on an expedited basis. By providing incentives for applicants to withdraw unexamined applications that may no longer be important to them, Project Exchange is expected to appreciably reduce the backlog of unexamined patent applications pending before the USPTO.

The expanded Project Exchange will be limited to 15 applications per entity through December 31, 2010.

“This week marks the 50th anniversary of the invention of the laser—a transformational invention that has spawned many other critical inventions, created new industries and generated jobs,” noted Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “Inventions like the laser remind us of the need for the USPTO to do everything we can to enable the next great innovation to come to market. Project Exchange will help us reduce the backlog and enable us to process applications more quickly.”

The program continues on a temporary basis, and applicants who wish to take advantage of the program must submit the necessary materials before the designated extended deadline of December 31, 2010. Whereas new patent applications are normally taken up for examination in the order they are filed, applications made special under this pilot will be advanced in the examination queue.

Additional details on the program will be available soon in the Federal Register and on the USPTO Web site.

For non-press inquiries, contact Pinchus M. Laufer, Office of the Associate Commissioner for Patent Examination Policy, by phone at 571-272-7726 or e-mail

JW Note:  We have heard a USPTO representative refer to this program as the “Dump One, Bump One” program.  An interesting concept with a hilarious nickname!

Secretary of Commerce Gary Locke on Patent Law Reform.

Posted in Practice Commentary by Jake Ward on May 7, 2010

There is an interesting article at Politico by Gary Locke, Secretary of Commerce, on the reasons that patent law reform should be enacted.  Most notable, in our opinion, are the portions of the current reform bill that were emphasized by the Secretary for their importance.

The Commerce Department just released a white paper that quantifies the effect America’s patent system has on the economy and job creation and describes the benefits of two key elements of pending patent reform legislation.

First, Congress will grant fee-setting authority to the patent office, which will enable it to adjust the actual costs of the services it provides. This could contribute significantly to the office’s ability to reduce the application backlog by 40 percent.

Second, creating an enhanced post-grant review procedure within the office will provide an alternative to costly — and often lengthy — litigation. It could also provide greater marketplace certainty — at lower cost. This review procedure is expected to be 50-100 times less expensive than litigation.

Thoughts from our readership?

They Invented What? (No. 168)

Posted in They Invented What? by Jake Ward on May 7, 2010

U.S. Pat. No. 7,037,541: Alcoholic beverages derived from animal extract, and methods for the production thereof.

JW Note:  Red wine with red meat, white wine with seafood, chicken wine with . . . chicken ? 

What is claimed is:

1. A fermented alcoholic beverage, comprising an animal extract subjected to lactic acid fermentation, followed by a heating process to terminate lactic acid fermentation, followed by yeast fermentation after termination of the lactic acid fermentation.