Federal Circuit Judge Admits that Family Member is Infringing PBJ Claims

PB&JIP Law Bulletin has a nice follow-up article on Smuckers’ Peanut Butter & Jelly patent appeal at the Federal Circuit.  According to their report, the judges on the panel were somewhat hostile to the applicant:

Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child’s peanut butter and jelly sandwiches to keep the filling from oozing out. “I’m afraid she might be infringing on your patent!” he said.

Smuckers is appealing the USPTO’s rejection of its patent application on its crustless sandwich making process.  Smuckers already holds one patent on the technology, but is hoping to capture a broader claim-set with this appeal.

A decision is expected within about four months.


Welcome to April!


A Mr. G. Aharonian holds the patent on a holiday boardgame that includes the fine American holidays of April Fool’s Day, Tax Day and Arbor Day. (U.S. Patent No. 4,915,391).

Abstract: A board game whose gameboard design is composed of an endless path of purchasable blocks representing the major national American holidays. . .

I wonder if the inventor has any relation to the famous G. Aharonian?

In other April First news, the IPO, as expected, has called for “more patents and fewer courts.”  From the press release:

Today IPO announced its 2005 legislative program. Key objectives are to quadruple the number of U.S. patents granted each year and to automatically enforce all patents without costly litigation. To this end, IPO called for eliminating the jobs of the 5,000 patent examiners at the USPTO and abolishing all PatentlyOImage009federal courts that have offended IPO members by denying or refusing to enforce patents. Money saved by cutting these unnecessary government jobs can be used to create a federal program to subsidize businesses known at “patent trolls,” in order to increase patent licensing income and strengthen the U.S. economy.  (IPO April 1 Special Report).

Just to be clear — this press release is a joke.

Patents, String Theory, Anti-Aging, and the Warp Drive


I was discussing string theory with a buddy on the way to work this morning.  It turns out that the practical applications of string theory have not yet been fully realized — at least as far as patented technology is concerned.  Only eight issued patents and eight published applications refer to string theory in any way.  Of these, the two most interesting include Jerry Jacobson’s patented method for ameliorating the aging process by using electro-magnetic energy.  (U.S. Patent No. 6,004,257).

Although not yet issued, UK scientists Andrew Worsley and Peter Twist have applied for their patent on specifications for warp drive technology based on the theoretical underpinnings of both general relativity and string theory. (U.S. Pub. No. 2003–0114313). The Worsley-Twist warp drive does not depend upon traditional emissions of matter to create thrust.  Rather, the drive creates a change in the curvature of the space-time continuum — thus allowing travel by warping space-time.  Worsley & Twist recently responded to a rejection under Section 101 of the patent act.  The patent examiner raised concerns over the possibility of the claimed terms “graviton” and “warp drive.”  In their response, the applicants pointed out that the warp drive does not necessarily require superluminal (faster than light) travel.



Trial Lawyers Beware: The Mock Jury Has Been Patented

Mock Jury Patent

To put everyone on notice: The method of conducting a mock trial has been patented.  The patent, No. 6,607,389, claims priority to a 2001 provisional filing date.  The novel portion of the claim appears to be that both the stricken and not-stricken members of the jury pool hear the case.  Claim 1 reads as follows: 

1. A method of conducting a mock trial exercise . . . comprising:

  • assembling an initial pool of potential mock jurors;
  • questioning members of the initial pool . . .;
  • striking members of the initial pool for cause . . .;
  • permitting the attorney[s]to make a number of peremptory strikes of members of the initial pool . . .;
  • assembling a probable jury comprising members of the initial pool not struck;
  • assembling a stricken jury comprising members of the initial pool struck;
  • presenting [at least a summary of the case] to both the probable jury and the stricken jury.

The patent was awarded to Dr. Louis Genevie, founder of Litigation Strategies, a New York jury research and consulting firm.  Thanks to Dan Ravicher at PubPat for showing me this one. 

USPTO Issues Design Patent Number 500,000 for Chrysler Convertible


The USPTO announced a ceremony to commemortate issuance of design patent number 500,000.  The patent, issued to DaimlerChrysler(R) for the design of the Chrysler Crossfire(R) will be awarded by the new Secretary of Commerce Carlos M. Gutierrez and Under Secretary of Commerce for Intellectual Property Jon Dudas.

Design patents are granted for new, original, ornamental designs for articles of manufacture. The first design patent was issued in 1842 to George Bruce of New York City for printing types. Design patents provide exclusive rights to their owners for a term of 14 years from the date of issuance. [LINK]

Long out of favor, design patents are seeing a rebirth.  Earlier this week in Junker v. Eddings, the Federal Circuit upheld an $800,000 verdict in a design patent case.  According to Philip Mann, unlike in prior cases, "the Federal Circuit did not go out of its way to find the design patent invalid and/or not infringed."


Friday, February 11, 2005, 11:00 a.m.
Lobby, U.S. Department of Commerce
Main Entrance, 14th Street, N.W.
NOTE: I just received word from the PTO that the ceremony is NOT open to the public.


The trivia contest posted last week generated lots of interest.  Thanks for everyone who tried their hand at searching.  The contest goal was to find a seminal U.S. patent that teaches a fluid lens.  The question included the clues that the lens was patented prior to WWII, had no cited prior art, 14 independent claims, and no dependent claims. A small non-monetary prize was promised to the winner.

However — there will be no prize, because the winner is one of our fine USPTO Patent Examiners (Examiner-H) who was able to find U.S. Patent No. 2,062,468.  Ethical rules bar us from sending him a prize, and Examiner-H would prefer to remain anonymous.  Greg Aharonian would be proud.

About the patent: This "optical device" was patented by Charles H. Matz in 1936 teaches a "fluid lens." The strength of the lens can be altered by varying the curvature of the surface of the liquid.  Interestingly, Matz introduces the concept of varying the surface curvature (surface tension) by varying the voltage across the fluid lens.


  • Download The Patent
  • We’re making the contest a bi-annual event (every 6 months). Feel free to send me suggestions for contest. (patent law blogger — Dennis Crouch).
  • LINK: Paul Schwander from the EPO regularly provides a similar quiz in the IPR-helpdesk newsletter to help searchers build up their skills. FYI: IPR = Intellectual Property Rights.

Patent TRIVIA CONTEST: Fluid-Filled Lens

One of our loyal readers sent in a TRIVIA question about camera lens technology.  Before going to law school, I spent some time as a consultant for a major lens manufacturer, so this topic is also of interest to me.

Both Philips Electronics and Varioptic have patents on fluid-filled camera lenses. The IP dispute between these two companies will likely become quite hot in the near future. [link, link].

However, neither company has made any public reference to a seminal U.S. Patent that teaches a fluid lens that was patented before World War II (WWII).  This patent has no prior art cited against it, has 14 independent claims and no dependent claims. 

Contest: Can you find that seminal patent? A quite small non-monetary prize for the first correct answer.

eBay infringement decision expected

There is an interesting article in the Post (free subscription) about Thomas Woolston, creator of the MercExchange and Patently-O Reader.  Woolston won a $35 million patent infringement suit against eBay that is now on appeal.  According to the article he and I have the same schedule:

Every morning at 11, Woolston stops whatever he’s doing, sits at his computer and clicks "refresh" on the Federal Circuit Court of Appeals Web site.

Woolston checks the Federal Circuit’s website because the court is expected to release its decision in the eBay case within the next few weeks.  I check the website so that I can provide the most up-to-date news on patent cases.

Election 2004: Paper Ballots Still Recieve A Majority of Votes

Portable Voting Booth Patent

Chicago still uses punch-cards for voting. Despite the risk of hanging chads or dimpled marks, the benefit of this system is the paper trail. Many voters, including myself, are reassured by the paper trail. Patent No. 4,445,731 (shown above) was invented by John Ahmann in the early 1980’s. The patent covers the type of portable voting booths used in my precinct. Ahmann is still recognized as an expert in voting technology and testified in the Bush v. Gore controversy of 2000. According to the BBC, about 30% of U.S. voters will use electronic voting (e-voting) machines in today’s election.

Problems and praise Opponents highlight the problems that have already occurred with the machines – pointing for instance to a congressional race in Ohio in which votes were incorrectly registered due to a problem with the memory cartridges.

At the same time however, Georgia’s entirely electronic system appears to have few naysayers after two years in operation – although it is widely accepted that the presidential election will prove the greatest test.

The principal criticism remains the lack of paper audit trails. Nevada is the only state using machines which will provide voters with the kind of receipt which would, if necessary, allow for a manual recount.

But in order to accommodate some of the concerns, a number of states – including California – will give voters the opportunity to vote using electronic machines or a paper ballot form.

Here is a picture of my neighbor and senate hopeful Barack Obama and his daughter casting his vote.

iPod Receives Design Patent

Apple has received a design patent on its 3G iPod. The application was filed just days before the public release of the new iPods, and issued as a new patent on October 26. (U.S. Patent No. D497,618). Apple Insider and Steve Nipper have more information.

What is a Design Patent?
A design patent covers ornamental, non-functional characteristics of an article of manufacture. The Patent Act provides that a design patent should be issued for any new, original and ornamental design for an article of manufacture. As such, a design patent only protects the appearance of an article and not any structural or utilitarian elements. A design patent has a term of 14 years from the date of issuance.

LINK: The patent laws provide for the granting of design patents to any person who has invented any new and nonobvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features. The proceedings relating to granting of design patents are the same as those relating to other patents with a few differences. See current fee schedule for the filing fee for a design application. A design patent has a term of 14 years from grant, and no fees are necessary to maintain a design patent in force. If on examination it is determined that an applicant is entitled to a design patent under the law, a notice of allowance will be sent to the applicant or applicant’s attorney, or agent, calling for the payment of an issue fee. The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are allowed and the drawing should clearly depict the appearance, since the drawing defines the scope of patent protection. The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form.

Patents for sale (not babies)

The Patent Offices publishes the Official Gazette (OG) in an online version every Tuesday. One section of the OG includes patents that are available for license or sale. Patentees can list patents they have available in a high-tech garage sale.

This week’s patents for sale include a Caulking Gun (U.S. Patent 6,435,373), A credit card for apartment renters (the card always had enough credit in reserve to pay the monthly rental fee) (U.S. Patent 6,738,751), and a diaper restraint system. (U.S. Patent 6,755,198).  Contact information for the inventors is is available here.

Question: Is this type of listing ever successful? E-mail your story.

North Carolina Inventor Helps Eliminate Bug Problems

A few months ago, David Nelson of Asheville, North Carolina received a patent on his device for capturing insects.  (U.S. Patent No. 6,651,379).  Essentially, David has created a stack of extra sticky pads — like Post-It® notes on steroids — that can be used to capture flies and other bugs.

Each sheet has a region is coated with a mild compression adhesive material capable of trapping of an insect in response to the physical manipulation by a human being…. For increasing the maneuverability of the device, the device can be attached to an elongated rod such as a fly swatter’s handle.  

LaundraPak Success


In another solo-inventor success story, fellow tiger Jeremy Kestler has turned his invention into a successful business. The LaundraPak hangs over a door and can be carried on your back to the laundry room. (U.S. Patent No. 6,729,519). As students are returning to college and law school, I’m sure that sales will be booming. Jeremy has a 6-minute time-slot on QVC to get his message out. (Between 6:30 and 7:00 on Tuesday, August 31, CTD).

Online Inventor’s Forum

The USPTO has released a transcript from its on-line chat.  Here are some Excerpts:

Can I use an invention promotion company to help me with my invention

USPTO Expert
Yes, however you should do a thorough search of what they offer including their costs and their success rate. Be sure and get references to ensure you are working with a reputable business. Also, registered patent practitioners are available to help you. For a list of questions to ask an invention promotion company go to our independent inventor link at our website.  http://www.uspto.gov/web/offices/com/iip/data.htm

can drawings be revised after the original non-provisional application?

USPTO Expert
Drawings can be revised as long as no new matter (additional information supported by the original specification) is added by the revision. Revision of drawings is accomplished by filing replacement drawings.

Is there a difference in preference/priority between individual patent applicants verses corporation applicants?

USPTO Expert
Although there are reduced fees for independent inventors and small businesses, the USPTO treats all applications in the same manner regardless of the fee paid.

Can I market my provisional patent, after I mailed the application? If not, when?

USPTO Expert
Yes, you may market your invention at any time after your file the provisional. But you could lose your patent rights if you sell or offer to sell your invention more than one year before the effective filing date of your invention. The filing date of the provisional will be the effective filing date of a subsequent non-provisional as long as the disclosure of the provisional provides sufficient disclosure for the claims of the non-provisional, but you must file a non-provisional application in order to obtain a patent.

What should I do if the (patent) examiner misunderstands the descriptions and benefits of the invention and compares it to prior art that has nothing to do with it?

USPTO Expert
In response to feedback from previous chat sessions, this month we have decided to answer more technical questions off-line in the written transcript of this chat which will be available in about a week on our website.  You can request an interview with the examiner. This interview can be in person or over the telephone. Give the examiner some advance notice of your request so that you both can agree on a convenient time. The interview could assist you in preparing your written response to the office action. An examiner has a burden to establish a basis for a conclusion of non-patentability. Section 2100 of the Manual of Patent Examining Procedure (MPEP) offers requirements to the examiner on developing a rejection. Probably MPEP 2111+ would be appropriate to your situation. From the MPEP sections, determine what rationale the examiner was required to use when drafting the rejection. If you can develop sound arguments why the examiner’s rejection failed to follow the MPEP guidance, then you may be successful in convincing the examiner to withdraw the rejection. http://www.uspto.gov/web/offices/pac/mpep/mpep_e8r2_2100_508.pdf

I just want to say that the PTO is providing an excellent service to the public.



The U.S. Patent Office has almost seven million sequentially numbered patents electronically available through its online web interface. You might be surprised, however, that Patent Number 1 (Traction wheels for a locomotive) was not the first patent. The first 10,000 patents issued between 1790-1836 were not originally numbered and all records of them were lost in a fire at the patent office.

No copies of the patent descriptions and drawings were kept anywhere else, and only a copy of the official patent certificate was sent to the inventor. Patents were not numbered then; they were referred to only by name and issue date.

The patents that were recovered have been renumbered as x-patents. Thus, Samuel Hopkins’ 1790 patent for potash manufacturing is U.S. Patent No. X-1. In today’s NYTimes, Teresa Riordan has a nice article about the ongoing search for the lost patent documents.

Update: PHOSITA has a great post with more history on the Patent Office fire.