Rejoice: It's No Longer Patent Infringement To Sell A Trading Card With Memorabilia

from the does-cafc-have-its-own-trading-cards-with-pieces-of-judicial-robes? dept

Justin Levine highlights the ridiculousness of the patent system today by noting that it took the court system eight years to determine that attaching memorabilia to a trading card shouldn't be patentable (pdf)... and even then, a CAFC judge dissented, claiming that the patents could be valid. The patents in question, 5,803,501 and 6,142,532 are pretty straightforward. Basically, they're about taking some piece of memorabilia and attaching it to a trading card (for example, attaching a piece of a jersey worn in a baseball game to a baseball card of the player).

While it's great that CAFC reasonably recognized that this concept should be considered obvious and non-patentable, I find the reasoning of the dissenting judge, Judge Rader, quite troubling. I saw Judge Rader speak at an event a few months ago, and the man is quite outspoken and opinionated (which is a good trait), but at times he seems to lose sight of what's actually at stake. When I saw him speak, he attacked the Supreme Court for some of its recent decisions that helped return a bit of sanity to the patent system. In this dissent, he seems so focused on nitpicking that he misses the big picture (which is the kind of thing that the Supreme Court has appeared to be annoyed about in its recent rulings repeatedly slapping down CAFC). His argument is that because no one had tried to sell cut up memorabilia with trading cards before (and some even thought it was a bad idea) that made it not obvious.

Judge Rader, with all due respect, appears to be confusing some rather important things. The fact that many companies thought that this was a bad business idea does not make it any less obvious. Judge Rader seems to think that because no one did it before, that means that it's a new "invention" that deserves a government granted monopoly. But, he ignores the possibility that, while the idea was obvious, most people just didn't think it made much sense as a business, until one company tried it out and saw that it worked. That's how business works. Even ideas that are "obvious" aren't tried because people think they won't work -- until eventually someone decides to test them out -- not because of a patent or some burst of genius, but because they decide to just try something new to see what happens. In the case of baseball cards and jerseys, it worked. But that doesn't mean the idea was some brilliant invention that requires exclusivity -- or that needs "disclosure" via the patent system to exist. It's just business -- which is helped along by competition and a desire to out-innovate the competition, not the desire to get a monopoly right from the government.

Filed Under: patents, trading cards