Design Patent Granted... On A Toothpick
from the because-with-that,-who'd-have-the-incentive dept
Via Sarah Burstein and the Design Law Blog, we discovered that just this week the US Patent Office granted a design patent... on a toothpick:Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: design patents, patents, toothpicks, uspto
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not just lines
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Re: not just lines
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Re: not just lines
Design patents can only be for the ornamental design, not the functional aspects of the product... Either way, it's not new.
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Re: Re: not just lines
But you haven't demonstrated that this design is not new. The toothpicks you pictured above are different. Can you actually show that this design is unpatentable? Or should we just chalk this post up to more mindless IP-bashing?
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Re: Re: Re: not just lines
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Re: Re: Re: Re: not just lines
It's "mindless" because he's trying to show how this patent is invalid by giving us pictures of toothpicks that are different. It's "mindless" because he mentions "substantial similarity" without explaining how that test would apply here. It's "mindless" because he refers to "the geniuses at the USPTO" as if they were wrong to issue the design patent when he hasn't actually demonstrated that that's true. This is just more par-for-the-course mindless IP-bashing from Mike. The point is to degrade the patent system. That's fine if he wants to do it, but he should back his stuff up. That's my point.
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Re: Re: Re: Re: Re: not just lines
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Re: Re: Re: not just lines
Can you actually show that the pictured ones are not "substantially similar" enough to the patented ones as to not get sued?
Can you actually show that this design is unpatentable?
Can you actually show where it's acceptable, in any sane world, that this design SHOULD be patentable? I know your common sense sometimes gets lost in your strictly legal view of the world, but come on man, this is just plain silly.
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Re: Re: Re: Re: not just lines
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Re: Re: Re: Re: Re: not just lines
You wouldn't come to the conclusion that the patent should be invalid when doing a quick search turns up ample prior art?
Will and Lee Obtuse must be your relatives.
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Re: Re: Re: Re: Re: Re: not just lines
Can you show me this prior art that is "substantially similar," under the appropriate meaning of that test, for this toothpick?
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Re: Re: Re: Re: Re: Re: Re: not just lines
The picture Mike displayed is substantially similar. To an ordinary observer they are both toothpicks with grooves on the end and to an expert in the arts they are still both toothpicks with grooves on the end.
Why do you think they are substantially different?
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Re: Re: Re: Re: Re: Re: Re: Re: not just lines
Why do you think they are substantially different?
The most obvious difference is that the patented toothpick merely has two stripes on it while the ones in the picture have three grooves. Stripes and grooves aren't the same thing. I appreciate that you dug up the "ordinary observer" test for substantial similarity. Honestly, I'd have to read several cases applying that standard before I could form an educated opinion about how that applies here. But my point isn't that Mike's reached the wrong conclusion. It's that he didn't do the work necessary to reach any conclusion at all.
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Re: Re: Re: Re: Re: not just lines
And I'm merely pointing out that you didn't actually back up your implication that this patent is valid.
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Re: Re: Re: Re: Re: Re: not just lines
I did not imply it's valid. I pointed out that Mike didn't show it's invalid. There's a difference.
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Re: Re: Re: Re: Re: Re: Re: not just lines
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Re: Re: Re: Re: Re: Re: Re: not just lines
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Re: Re: Re: Re: Re: Re: Re: Re: not just lines
Doesn't the would-be patentee prove the patent is valid during prosecution?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: not just lines
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Re: Re: Re: Re: Re: not just lines
It is correct to say that the author of this article has stated a conclusion, but without adequate substantiation. For example, the design patent applies to the design as a whole, and the absence of dashed lines teaches that it is the entire object that makes up the covered design.
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Re: Re: Re: Re: Re: Re: not just lines
Thanks. Unfortunately, it's the common reaction here. Dare to challenge Oz the Great and Powerful, and the minions freak out.
It is correct to say that the author of this article has stated a conclusion, but without adequate substantiation.
That was my point as well. I don't care if he wants to bash on a patent because he thinks it's invalid. It'd just be nice if he actually backed it up with something that resembles legal analysis.
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Re: Re: Re: not just lines
http://www.american.com/graphics/2007/november/Glorious%20Toothpick2.jpg
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Re: Re: Re: not just lines
I'm here because I like IP bashing!
If you have such a problem with IP bashing you should stop coming here to read it.
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Re: Re: Re: Re: not just lines
As far as I can tell, he puts very little thought into his IP-bashing. The "prior art" he dug up doesn't even look like the patent at issue. Challenge him on any of his nonsense, and he's gone. Where's the thought? I haven't seen it. It's just reactionary anti-IP nonsense.
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Re: Re: Re: Re: Re: not just lines
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Re: Re: Re: Re: Re: Re: not just lines
I disappeared rather than discuss some issue straightforwardly? I don't remember it that way. If there's some issue you'd like me to discuss directly and honestly, I'm right here and ready to go. I love a good challenge!
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Re: Re: Re: Re: Re: Re: Re: not just lines
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Re: not just lines
Since design patents are limited to the exact design in the drawings of the design patent, there is a difference. Design patents protect the aesthetics of the shape, which includes every little difference.
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Re: Re: not just lines
Mark, as I have tried several times to explain, the design patent has NO, as in ZERO, NONE, ZILCH, NADA, INDENTATIONS. None. Those are two colored STRIPES, as the patent makes...er...patently clear.
It seems highly unlikely that mere grooves of any number on a toothpick is patentable.
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Re: Re: Re: not just lines
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Prior art
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Re:
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Design patents
"Substantially similar" in this case means virtually identical in appearance. The patent doesn't stop anyone from making toothpicks like the ones on the photo.
Design patents aren't the problem.
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Re: Design patents
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Re: Design patents
Not to some judges.
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Re: Re: Design patents
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Re: Design patents
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Re: Re: Design patents
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Re: Re: Design patents
No, the link you provided does NOT suggest that anyone making the toothpicks shown is likely going to get sued, because the toothpicks shown have GROOVES, not two colored stripes. Grooves in toothpicks have been around for a long time, and are nominally functional. Ergo, you cannot assert a design patent against a functional feature. The defendant would move for an immediate dismissal, if someone should be so foolish as to assert two colored, painted stripes against a GROOVE.
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Re: Re: Re: Design patents
I make no claims to be a lawyer, nor am I suggesting that such a case would be won, but observable reality suggests that patent or trademark + "from a distance they look sort of the same" is ample reason to cost someone a fortune trying.
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Re: Re: Re: Re: Design patents
First, all the links show one of two things. Either they are directed to trademarks, which the design patent is not, or they show toothpicks with grooves. The former is not related to the design patent in question.
Trademarks are typically a judgment call on the part of the jury and/or judge. Just how close is close? What is the likelihood of confusion? These are generally trademark issues.
Design patents, on the other hand, generally have to be so substantially similar that they are darn near identical. In the case of this particular design patent, which claims two colored lines according to an included figure, the infringing product would have to be nearly identical to be infringing because of the claim to the colored lines and the associated figure.
Grooves cannot be included as part of the design because (1) they are functional, which cannot be covered by a design patent, (2) grooves have no color, and (3) grooves are not lines, they are grooves.
This patent will never cost anyone a fortune, because there is minimal value in the patent. Even if someone were sued over it, do you seriously think any money or much money would change hands? Most likely, the plaintiff would be seeking a cease and desist.
This is a very narrow design patent with value likely only to the assignee. Doubtful anyone else is interested in it.
No fortunes to be won and lost here, move along.
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I'm applying for a design patent
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In the meanwhile the patent owner will probably make a decent living getting paid to not sue companies that make toothpicks with cutouts.
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What a planet it's turning into
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Re: What a planet it's turning into
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At least we know...
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What If - Out of the box
If you don't have profits (say a non-profit company), you don't owe royalties, though damage claims may be curtailed.
I would have to think that would "focus" patents on only those that were of a competitive advantage, that is, on quality patents. It would also make patent trolls (though who license patents but do not make product) unable to threaten huge treble damage penalties.
Just some thoughts to make the system more "self-correcting".
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The confusion of design patents
I'm not a lawyer, much less a patent lawyer, so no surprise if I'm wrong, but I'm not even sure that prior art applies to design patents. I think that what matters is that a design be different than any other design patent already issued.
In any case, most of the problems associated with patents don't really apply design patents. Design patents may have their own issues, but they're mostly different ones.
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Re: The confusion of design patents
No.
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Re: The confusion of design patents
According to this pretty straightforward description of design patents, prior art is supposed to be examined and the bar is set at whether an "ordinary observer" (as opposed to an expert) would be confused.
Personally, as an ordinary observer, the pictured toothpicks look pretty much like the patented ones to me.
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Re: Re: The confusion of design patents
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Re: The confusion of design patents
My confusion is the difference between design patents and trademarks. For instance, Coca-Cola applied for and got a design patent for its bottle shape in 1915. However, the bottle shape was also trademarked. Despite differences in expiration terms and registration costs (and perhaps esoteric legalities), it would seem that a design patent and a design trademark would be, in practice at least, virtually the exact same thing.
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Re: Re: The confusion of design patents
Trademarks, however, apply to all uses of the mark. Trademarking the shape of the bottle means that (assuming the TM applies to a matching product category) using the shape in commerce would be a violation, even if the shape was an image and not the actual bottle.
There are a ton of other differences that might come into play as well -- for instance, you can't trademark something that you aren't actually using in commerce, but you could get a design patent for it.
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Re: Re: The confusion of design patents
I was thinking it's more like a copyright than a trademark.
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Re: Re: Re: The confusion of design patents
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Those are lines, not grooves...
First, those are lines in the pictures, not grooves. Grooves are nominally functional, and would not qualify for a design patent.
Second, the lines are in color, and given the plurality of designs for toothpicks, the protected feature is two stripes of specific colors.
This design patent is for two colored stripes, and as opposed to someone's comment above, courts tend to interpret design patents very narrowly, such that the nominally infringing product needs to be almost identical to infringe. Further, design patents are rarely litigated, and when they are, the usual outcome is a cease-and-desist rather than money changing hands. If money does change hands, it tends to be nominal.
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Re: Those are lines, not grooves...
Second, the lines are in color, and given the plurality of designs for toothpicks, the protected feature is two stripes of specific colors.
A voice of reason. Thank you.
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Re: Those are lines, not grooves...
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Re: Those are lines, not grooves...
I don't know what this Masnick person's credentials are, but he must have a graduate degree in generating controversy for no reason.
A quick read of the file history at the USPTO website on the Public PAIR system shows that color drawings (along with a petition to accept) were submitted because color is an integral part of the design patent.
So no, it's not about grooved toothpicks. The author is an idiot wanting page views.
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Re: Re: Those are lines, not grooves...
Sadly, he has an MBA from an Ivy League school, yet he pumps out mindless crap such as this post with alarming regularity.
A quick read of the file history at the USPTO website on the Public PAIR system shows that color drawings (along with a petition to accept) were submitted because color is an integral part of the design patent.
Mike doesn't do his homework, and this post wasn't about getting to the truth. The point here was to mock the USPTO and claim how dumb they are.
The author is an idiot wanting page views.
You've summed up Techdirt perfectly and succinctly.
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Re: Re: Those are lines, not grooves...
That NEVER happens on Techdirt.
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Re: Re: Re: Those are lines, not grooves...
That NEVER happens on Techdirt.
Well, he may have reached the right result (the design patent is invalid), but he didn't actually demonstrate as much. His purported prior art has grooves, when the design patent is for a toothpick with two colored stripes. I suppose one could argue that the two are substantially similar under the ordinary observer test, but my quick perusal of the case law leads me to believe they're not. Of course, he's not cited any case law to back up his argument. Multiple people pointed this out in the comments, and (of course) he's not here backing up his claim or admitting that he got it wrong. And just wait... the next time he needs a quick example of how dumb the USPTO is, he'll link back to this post like he got it right all along. Such willful blindness allows the Techdirt house of cards to remain unrattled.
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Re: Re: Re: Re: Those are lines, not grooves...
Perhaps someone can explain why they believe this comment lacks substantive merit. Frankly, the point made is true. The article was prepared in haste and with what appears to be little, if any, pre-publication investigation to develop the salient facts.
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This is OK
None of the toothpicks in the photo have those exact size grooves in that exact position.
It LOOKS different. Which is the criterion for a design patent.
All the design patent does is let the holder prevent other people from making toothpicks that LOOK EXACTLY like those.
They can't prevent people making toothpicks with:
* 1 groove
* 3 or more grooves
* 2 grooves that are not equally wide
* 2 grooves equally wide but in a different position
* 2 grooves equally wide but in the same position, but with both ends pointy
Etc.
To my mind this is exactly like a trademark, and is fine.
We have bigger fish to fry.
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Re: This is OK
None of the toothpicks in the photo have those exact size grooves in that exact position.
It LOOKS different. Which is the criterion for a design patent.
Shh!!! You will be summarily ostracized for actually thinking.
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There ain't no GROOVES!!!
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Re: There ain't no GROOVES!!!
Thank you.
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Re: Re: There ain't no GROOVES!!!
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What is a patent like that even meant to accomplish?
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Re:
Further, if someone should allegedly infringe, there is so little money in a design patent lawsuit (after all, the loss has to be a proven financial loss from the sale of the product, and regardless of how many millions of toothpicks are sold, there is little profit there), that the most they could hope for is a cease and desist.
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The purpose of the Patent system
The more bogus the granted patent, the more work there is for lawyers everywhere to go through the effort of having it repealed.
Lawyers are happy, lots of money. Courts are happy, lots of work to justify lots of taxes.
Politicians are happy, they can claim to "reform" the system and get re-elected, at the same time getting lots of campaign contributions from lawyers.
Everyone wins except the taxpayer and actual innovator.
The system does not need reform, it needs to be abolished.
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Re: The purpose of the Patent system
If the purpose of the patent system is full-employment for lawyers, then the system is functionally absolutely abysmally.
The United States has approximately 1.3 million lawyers. Out of those 1.3 million lawyers, roughly 32,000 are patent attorneys, which is less than 2.5% of all attorneys. Even if you add in the number of attorneys involved with litigation who are not patent attorneys, you might get another 1% - maybe.
I have yet to see even one politician who was re-elected on a "patent reform" platform.
The last time there was no patent system, we had 13 of them. If the present system is abolished, it will most likely be replaced by more than 51 of them. If you think things are bad now, wait until every state has their own patent system.
Actually, the courts are not happy, and multiple ways have been created to reduce court workload, which appears to make the courts happy (with the possible exception of the East District of Texas).
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The design of the patented one is quite confusing and there is hardly any difference compared to the toothpicks in the picture above.
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