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Underwear Patents:

When I teach Intellectual Property, I always have a lot of fun with the important early patent case of Egbert v. Lippmann (104 US 333(1881)). In Egbert, the inventor of a new kind of corset-spring gave one of them to his then-girlfriend (who later became his wife) for use in her corset -- and the Supreme Court held that his patent was barred because this constituted a "public use" of the new spring design.
It's a very neat case -- aside from allowing a good discussion of the contours of the "public use" doctrine in patent law (as the dissent puts it, "if this is a 'public' use, then I cannot imagine what would not be"), there are all sorts of opportunities for good jokes; the Court opinion itself has the best double entendre in Supreme Court history (where the Court notes that the inventor "slept on his rights for eleven years"). I've even written a pretty decent song about the case (from the point of view of some guy trying to, um, convince Ms. Barnes to take off her corset and show him her springs . . .).
In any event, that's my excuse for noting this recently-filed patent infringement lawsuit against Victoria's Secret and their "Very Sexy 100-Way Strapless Convertible Bra." [A copy of the complaint, and the allegedly infringed bra patent, can be found here).

NYU 3L:
And to make matters funnier, she said she invented it in 1999, and filed in 2002--could we get another public use bar in a ladies' underwear patent case?
4.22.2008 6:06pm
wm13:
Do you think that those jokes constitute sexual harassment? What if a student filed a complaint? What if your co-conspirator made those jokes at Mayer Brown and an associate filed a complaint?
4.22.2008 6:08pm
CJColucci:
The best joke you can make is simply to read the opinion. The "slept on his rights" line always gets guffaws, and you're protected because you're quoting the actual language of the Supreme Court. Compare Cohen v. California (opportunity to say "fuck" in class).
4.22.2008 6:55pm
theobromophile (www):
NYU 3L - unless I'm out of it, the inventor has one year from date of first public use or sale to file a patent, not from the date of invention. (Of course, you can sell something before having even invented it, thus starting the one-year-clock, but I'm almost certain that it doesn't go the other way around.)

On a totally unrelated note, I would have thought that men would have invented ladies' underwear that took itself off, but, apparently, lingerie is a neglected area of technology.
4.22.2008 7:09pm
NYU 3L:
theobromophile--I know it's a year from public use, but perhaps she did make and use a prototype before 2001. So, I phrased it as a question.

VS is more likely to win on noninfringement, since the patent has a terrible Jepson claim as its independent claim, which is easy to design around. The inventor who prosecutes her own patent has a fool for a client.
4.22.2008 7:21pm
PersonFromPorlock:

The inventor who prosecutes her own patent has a fool for a client.

Probably true, but the only path open to inventors of normal means. Which is to say that for most Americans, the patent system might as well not exist.
4.22.2008 8:37pm
Jon Rowe (mail) (www):
Back in 2000 I remember reading that case in your IP class at Temple Law, Prof. Post. And what a great class it was.
4.22.2008 10:17pm
Jack S. (mail) (www):

And to make matters funnier, she said she invented it in 1999, and filed in 2002


Details...details. She did not say she invented it in 1999. She said the idea "popped" into her head in 1999. Who knows when she actually reduced it to practice or developed it enough to qualify as invented (which unless shown otherwise is going to be June 18, 2002).
4.23.2008 3:55am
Bruce Hayden (mail) (www):
The inventor who prosecutes her own patent has a fool for a client.
Probably true, but the only path open to inventors of normal means. Which is to say that for most Americans, the patent system might as well not exist.
I do have some sympathy for inventors who don't have enough money to pay for a patent attorney. But the pro se patents tend to be worth about as much as was spent on them. Ditto for applications - have had to try to prosecute some of them over the last couple of years, and it was inevitably a losing cause.

My experience is that patent attorneys are dangerous and need supervision their first maybe five years of practice (I still ask for help some times as I approach 20 years). And that is five years of patent experience, plus three years of law school (for patent attorneys, as contrasted with patent agents) and their technical training typically missing from your pro se applicants.

Why is it so hard? Not quite sure, but a lot of it has to do with claiming. After spending years arguing about single words and cleaning up antecedent problems from other practitioners, you (hopefully) learn how to do a good job at claiming the invention. It helps if you have a some experience litigating patents too, since that is where you really learn how to break claims and/or design around them. And after long enough trying to amend claims in the face of weak specifications, you learn what you need to put in the specification and drawings in the first place (indeed, I may lose some Beauregard claims in an application that I prosecuted last week since there was no medium on which to store instructions in the original specification - a stupid oversight of an inexperienced patent attorney who was over his head with software applications).

I do sometimes wonder what the pro se applicant thinks he is doing it for. If he can't afford to hire a patent attorney or agent to get it done right, then he assuredly cannot afford to litigate the patent. And if he gets a patent issued, it is likely either to get invalidated if litigated, and/or is nearly uninfringeable. I have seen a steady stream of pro se patentees looking for contingency fee litigation. Sorry. It is almost always a waste of the patent attorney's time and effort.
4.23.2008 8:15am
PersonFromPorlock:
Bruce Hayden:

Yep, that's basically what I said: for most ordinary Americans the patent system might as well not exist. As for why it's that way, an only moderately paranoid explanation is that the present setup suits PTO bureaucrats who want to hold their workload down, established companies who want to discourage technology that obsoletes their own - unless it's theirs - and patent lawyers for whom complexity equals income. Given the high entry cost, that pretty much completes the roster of players in the system.

The result is that for 'garage inventors', the patent system is a net discouragement. I suspect that in a perfect world it would be found unconstitutional as it stands, because it so thoroughly fails "To promote the Progress of Science and useful Arts."
4.23.2008 9:31am