September 24, 2018

(Prior) Art Masterpieces

By Bryan K. Wheelock, Principal

The “prior art” includes virtually anything known or used before the alleged invention (pre-AIA) or filing date (post-AIA), and there are some amazing examples of the extent patent challengers, and even patent examiners, will go in the pursuit of prior art.

One of the most well know instances is from Sakraida v. Ag Pro, 425 U.S. 273 (1976), where the Supreme Court invalidated U.S. Patent No. 3,223,070, entitled “Dairy  Establishment,” covering a water flush system to remove cow manure from the floor of a dairy barn, citing the Legends of Hercules from Witt, Classic Mythology (1883). The Supreme Court noted in a footnote that Heracles cleansed the stables of Augeas, King of Elis, in a single day by diverting the river Alpheus.

Another instance is in Karl Kroyer’s Netherlands application for a patent on his Method of Raising Sunken or Stranded Vessels. Mr. Kroyer successfully raised the sunken freighter Al Kuwaita from the bottom of Kuwait harbor by pumping 27 million expanded polystyrene balls to raise the sunken freighter. He then filed patent applications in Denmark, Great Britain, and the Netherlands. Things were going well until the Netherlands patent examiner found a Donald Duck cartoon in which Huey, Dewey, and Louie helped to raise Scrooge McDuck’s yacht by filling it with ping pong balls.

Apparently, patent examiners spend a lot of time reading comics. They played an important part in the examination of Great Britain patent application 2117179 on an Entry System for Pets, which the Examiner rejected over a Beano comic strip:

When they are not reading comics, examiners are apparently watching movies because an examiner relied on the movie Borat to reject Patent Application 2009/0216171:

It not just patent examiners who rely upon movies. In defending a suit brought by Apple on its iPad patents, Samsung pointed to tablet devices used by the astronauts in Stanley Kubrick’s 1968 classic 2001 Space Odyssey: