On July 7, 1936, U.S. Patent No. 2,046,343, 2,046,837, 2,046,838, 2,046,839, and 2,046,840 issued to Henry F. Phillips all relating to a “screw having a head, a tool receiving recess formed in the head of the screw, said recess comprising a plurality of radially disposed tool receiving grooves,” i.e., the Phillips head screwdriver.
However, Phillips was not the first to invent a screw with a cruciform recess — that honor belongs to J.P. Thompson, who obtained U.S. Patent No. 1,908,080 three years before Phillips:
So why is it a Phillips Head Screwdriver, not a Thompson Head Screwdriver?
Thompson approached many screw manufacturers, all of whom said his screw was impossible to manufacture because the punch needed to create the recess would destroy the screw head. Thompson concluded the whole idea was not manufacturable, confiding in an acquaintance named Henry Phillips who became intrigued with the idea and offered to buy the rights to the patent.
Phillips, an engineer, immediately formed the Phillips Screw Company revised the design and began revisiting many of the same manufacturers that had previously rejected Thompson. Finally, he met with success at American Screw, the nation’s largest screw manufacturer. Phillips convinced General Motors to use the screws on the 1937 Cadillacs. By 1940, 85% of the screw manufacturing companies had a license to produce the Phillips screw recess design.
This is another lesson in successful inventing: Not only do you have the envision the benefits of the invention, but you have to be able to get others to envision those benefits as well.
78 years ago today, on July 5, 1946, Louis Réard introduced his two-piece swimsuit design to the press and the public at the Piscine Molitor, a popular public pool in Paris. The swimsuit was modeled by Micheline Bernardini, an “exotic dancer” who worked at the Casino de Paris, because more reputable models refused to wear the suit, which consisted of just four triangles of fabric, totalling about 30 square inches.
There had been two-piece swimsuits before. Just a few months earlier, Ii May 1946, Jacques Heim produced a two-piece swimsuit that he named the “Atome.” Heim hired skywriters to fly above the Mediterranean coast advertising the Atome as “the world’s smallest bathing suit.” Réard’s swimsuit was more daring because it was smaller, and for the first time exposed the wearer’s navel.
Réard introduced his design four days after the first test of a nuclear weapon at the Bikini Atoll on July 1, 1946. The newspapers were full of news about it and Réard wanted to capitalize on the publicity so he named is suit the “bikini.” Réard, with an obvious flair for marketing, hired his own skywriters to fly over the French Riviera advertising his design as “smaller than the smallest bathing suit in the world.” In the 1950’s Réard advertised that it wasn’t a true bikini “unless it could be pulled through a wedding ring.”
Less than two weeks from its introduction, Réard applied for French Design protection on his “Costume de bain 2 pièces.” The design was published as 31778 in Volume 374, pages 23-25, on December 17, 1946, and he received Reg. No. 35473-004.
It took a few years for society to catch up to Réard’s daring design, but by the 1960’s the bikini was mainstream. In August 1960, Brian Hyland famously sang about the “Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikiini.”
Réard opened a bikini shop in Paris and sold swimsuits until he retired in 1980 and moved to Lausanne, Switzerland, where he died in 1984 at the age of 87.
An interesting side note is that Louis Réard was a mechanical engineer who took over his mother’s lingerie business in about 1940 and became a clothing designer.
Today marks the 248th anniversary of the Declaration of Independence. It seems we mark the day more than the underlying event. But in the past the Declaration was more widely celebrated, including in patents.
U.S. Patent No. 8,936, which issued February 1, 1875, on a Design for Fan, that is printed, stained, embossed, or painted the coat of arms of the original thirteen Federal States, upon the lower end of a shield upon which, and above the coat of arms, is the name of one of the signers of the Declaration of Independence from the State or Colony whose coat of arms is shown upon the same shield:
U.S. Patent No. 7829 issued on November 3, 1874, on a medal that consists of “a representation on one side of said medal of Carpenter’s Hall, in the city of Philadelphia, Pennsylvania” and “representation on the other side of said medal of the signing of the Declaration of Independence of the United States of America.”
U.S. Patent No. D8000, issued January 12, 1875, on a design for a medal with “an allegorical picture of America, showing the Declaration of Independence to Britannia, and holding the American flag unfurled and about to be planted on American soil.”
U.S. Patent No. D8364 issued June 1, 1875, on a design for a Fan with “an elevation of the United States Centennial Exposition Buildling, printed or otherwise produced upon the obverse sidle of the fan,” and a reverse side containing “the names of the signers of the Declaration of Independence, with representations of foliage and of articles pertaining to industrial pursuits, and at the central upper part a medallion likeness of Washington, surrounded by the national flag and surmounted by the words “ E Pluribus Unum,” the centennial dates 1776—1876, the representation of an eagle, and of a galaxy of stars.
U.S. Patent 8581 issued August 24, 1875, on a Medal of a tree whose thirteen roots represent the original thirteen colonies of the United States, the names of which are placed upon the roots. The trunk has, at its base, the words “Declaration of Independence’ around the date 1776, and the word “Constitution” along its length upward. The eighteen branches represent the eighteen administrations, which are indicated by the names of the Presidents of the United States thereupon. Upon the foliage the names of the thirty-seven States and twelve Territories now comprising the Union are written:
U.S. Patent No. 8593 issued August 31, 1875, on a Flag on design consists of a tree, whose thirteen roots represent the original thirteen colonies of the United States, the names of which are written upon the roots. The trunk has at its base the words, “Declaration of In dependence’ around the date 1776, and the word “Constitution’ along its length upward. The eighteen branches represent the eighteen administrations, which are indicated by the names of the Presidents of the United States thereupon. Upon the foliage the names of the thirty-seven States and twelve Territories now composing the Union are written. The words “The Century Plant” are written above the tree, and beneath them the date 1876. Below the tree is a monogram of the initials J. C. D., and the whole is surrounded by a border of one hundred linked circles, and the dates beginning with 1776 and ending with 1876.
U.S. Patent No. D8876 issued December 28, 1875, on Printing or Weaving of Silk or Other Fabrics, features the preamble and signatures from the Declaration of Independence:
Have a happy and safe Fourth of July, and make sure to remember the document and its authors who made our freedom to do so possible.
Ninety-five years ago today, E.A. Murphy and Eric Owen made the first foam rubber at the Dunlop Latex Development Laboratories in Birmingham, England, using an ordinary kitchen mixer.
Dunlop Rubber Company Limited had filed a Great Britain application on March 21, 1929, and filed a corresponding application in the U.S. on March 20, 1930, which eventually issued on April 5, 1932, as U.S. Patent No. 1,852,447:
The patent explained that “the froth or lather may be formed by beating or stirring the material with paddles of the wire mesh type or with stirrers of the type used in cake mixing or egg beating machines or it may be formed by blowing air or other suitable gas into the dispersions or emulsions either alone or in conjunction with beating or whipping devices. The froth or rubber dispersion thus obtained may be formed to any desired shape as for example by pouring it into open molds and permitting it to set.”
While the original foamed latex has been replaced with foamed urethanes, think how much harder (literally and figuratively) life would be without foam rubber.
45 years ago today, the Sony introduced the Walkman. Sony never pursued patent protection on the Walkman, believing it to be an innovation, not an invention. However, al little more than two years earlier, in March 1977 Andreas Pavel filed a patent application for his “Stereobelt” in Italy, followed by applications in Germany, United States, United Kingdom, and Japan.
Negotiations between Pavel and Sony began in 1980 and ended in 1986 with Sony agreed to pay Pavel limited royalties for the sales of certain Walkman models sold in Germany. The second round between Pavel and Sony began in 1990 in England and Wales, ending in 1993 with the court holding Pavel patent invalid for being “obvious and not significantly inventive,” leaving Pavel with a seven-figure attorney fee award to pay. On appeal Pavel tried to show non-obviousness through the commercial success of the Walkman, but the court rejected this, instead attributing the success to Walkman’s form factor, minimal operating power, and ability to reproduce high-quality sound at reasonable cost as key reasons for its appeal and popularity. The third and final round began in 2004, with Pavel threatening to file infringement proceedings in the remaining countries where he held patent, and Sony reportedly agreeing to a cash payment in the “low eight figures” and ongoing royalties of the sale of certain Walkman models.
Pavel told The New York times that he approached several electronics manufacturers but said he was met with rejection and ridicule. “They all said they didn’t think people would be so crazy as to run around with headphones, that this is just a gadget, a useless gadget of a crazy nut.” 45 years later, it’s hard to find someone running around without headphones. So it is with inventors — they see what the rest of us miss.
Less than a month after Hikma launched its generic icosapent ethyl product, Amarin sued under 35 U.S.C. § 271(b), alleging that Hikma had induced infringement of U.S. Patent Nos. 9,700,537 and 10,568,861. through the content of Hikma’s press releases, website, and product label evidence Hikma’s specific intent to actively encourage physicians to directly infringe the asserted patents by prescribing its generic icosapent ethyl product for the off-label CV indication, an indication for which Hikma did not get FDA approval. Hikma moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Amarin had failed, as a matter of law, to allege facts that Hikma had taken active steps to specifically encourage infringement.
The district court referred the case to a magistrate judge, who recommended denying the motion. The magistrate judge concluded that, based on the totality of the allegations, which relied not only on the content of the skinny label but also Hikma’s press releases and website, Amarin had “pleaded an inducement claim . . . that is at least plausible.” Specifically, she noted that, “notwithstanding the lack of an express instruction regarding the CV indication in the ‘Indications and Usage’ section of Hikma’s label, several other portions of Hikma’s label, taken together with Hikma’s public statements, instruct physicians to use Hikma’s product in a way that infringes the asserted patents.” On de novo review, the district court declined to adopt the magistrate judge’s recommendation and granted Hikma’s motion to dismiss.
The Federal Circuit said that although this case has underlying features of a traditional Hatch-Waxman case, at bottom, it is nothing more than a run-of-the-mill induced infringement case arising under 35 U.S.C. § 271(b).
The Federal Circuit said that although this case has underlying features of a traditional Hatch-Waxman case, at bottom, it is nothing more than a run-of-the-mill induced infringement case arising under 35 U.S.C. § 271(b). Accepting all well-pleaded facts as true and drawing all reasonable inferences in Amarin’s favor, the Federal Circuit concluded that Amarin’s complaint plausibly plead that Hikma actively induced healthcare providers’ direct infringement, i.e., that Hikma encouraged, recommended, or promoted infringement.
Amarin alleged that the clinical studies section, which describes statin-treated patients with the same cardiovascular event history and lipid levels covered by the asserted patents, would be understood by physicians as a teaching that the product could be prescribed to treat cardiovascular risk. Amarin further alleged that Hikma’s removal of the CV Limitation of Use language and the warning of potential side effects for patients with cardiovascular disease, communicate to physicians that Hikma’s generic product could be used for the off-label CV indication — particularly since other drugs contain the CV Limitation.
The Federal Circuit said that taken on its own, it might have agreed with the district court (and Hikma) that the label does not, as a matter of law, recommend, encourage, or promote an infringing use. But, as the magistrate judge correctly observed, Amarin’s theory of induced infringement is not based solely on the label. Counsel for Amarin explained that “our case is not about the label standing alone, but to be clear, we do rely on portions of the label”). Rather, it is based on the label in combination with Hikma’s public statements and marketing materials.
The Federal Circuit noted that Hikima’s website promoted its product as broad enough to encompass both infringing and non-infringing uses, and its press releases, consistently referred to Hikma’s product as a “generic equivalent to Vascepa®” or “generic Vascepa®.”
Hikma’s press releases broadly refer to the product as a “generic version” of Vascepa and provide usage information and sales data for the brand-name drug from which it is plausible that a physician could discern an encouragement to use the generic for purposes beyond the approved indication. The Federal Circuit found that the allegations in the Complaint plausibly state a claim for induced infringement.
June 25 is the anniversary of Michael Jackson’s death in 2009. Michael Jackson is remembered for many things, but he is probably not remembered by most people as an inventor — but he was. Michael Jackson received U.S. Patent No. 5,255,452 on a Method and Means for Creating Anti-Gravity Illusion:
This would appear to be what might have been used in Jackson’s 1988 Smooth Criminal video (see below), but the October 13, 1988, release date of the video and the June 29, 1992, filing date of the application don’t seem to match up.
Maybe Jackson was protecting a later-developed improvement to the illusion in the video. Otherwise, the one-year public use bar would seem to be a problem.
Anyway, RIP Michael Jackson, entertainer and inventor.
In Beteiro, LLC v. Draftkings, Inc., [2022-2275, 2022-2277, 2022-2278, 2022-2279, 2022-2281, 2022-2283] (Fed. Cir. 2024), the Federal Circuit affirmed the dismissal of a suit for infringement of U.S. Patent Nos. 9,965,920, 10,043,341, 10,147,266, and 10,255,755 for failure to state a claim based on the subject matter ineligibility of the patent claims.
All of the patents share a common specification and title: “Apparatus and Method for Facilitating Gaming Activity and/or Gambling Activity.” The patents disclose a purported invention which “facilitate[s] gaming activity and/or gambling activity at a gaming venue remote from the user’s or individual’s physical location” such that the user can “participate in live gaming activity and/or gambling activity via a user communication device” even if the user is not in the same location as the gaming venue.
At step one of the Alice/Mayo test, the Federal Circuit agreed with the district court that Beteiro’s claims are directed to the abstract idea of “exchanging information concerning a bet and allowing or disallowing the bet based on where the user is located.”
The Federal Circuit said that the claims exhibit several features that are well-settled indicators of abstractness:
First, the claims broadly recite generic steps of a kind frequently held to be abstract (detecting information, generating and transmitting a notification based on the information, receiving a message (bet request), determining (whether the bet is allowed based on location data), and processing information (allowing or disallowing the bet).
Second, the claims are drafted using largely (if not entirely) result-focused functional language, containing no specificity about how the purported invention achieves those results.
Third, there are several precedents where broadly analogous claims, such as those involving methods of providing particularized information to individuals based on their locations, to be abstract.
Fourth, the district court was able to persuasively analogize Beteiro’s patent claims to longstanding “real-world” (“brick and mortar”) activities.
At step two, the district court found that the representative claim failed to provide an inventive concept because it achieved the abstract steps “using several generic computers – namely, a ‘computer,’ a ‘communication link,’ a ‘first communication device,’ a ‘second communication device,’ and a ‘global positioning device.’” The district court thus concluded that the claim that simply describes a conventional business practice executed by generic computer components cannot survive Step 2. The Federal Circuit agreed.
236 years ago today, New Hampshire became the ninth state to ratify the Constitution, and the U.S. Government was off and running. During the Constitutional Convention of 1787, both James Madison of Virginia and Charles C. Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. (Pinckney’s South Carolina was the first state to enact its own patent law). James Madison wrote in the Federalist, “the States cannot separately make effectual provision” for the protection of invention and so in drafting the Constitution of the United States, responsibility for providing such protection was entrusted to the Congress of the United States. Madison’s and Pinckney’s proposals resulted in Article I, Section 8, Clause 8, which provides:
“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The First Congress in 1789 considered patent and copyright legislation. On January 8, 1790, during his first State of the Union, President Washington called on Congress to establish act on the Constitutional authorization, urging Congress to pass legislation designed for “the promotion of Science and Literature” “so as to better educate the public.”
On April 10, 1790, Washington signed into law the first Patent Act, and Samual Hopkins must have been waiting in the lobby because the first United States patent issued to him a few months later on July 31, 1790. The Patent Action of 1790 did not establish a Patent Office, and instead the submissions were examined by a committee, including Thomas Jefferson, that not only decided whether to issue a patent, but for how long (the Patent Act set the maximum term at 14 years). A grand total of three U.S. patents issued in 1790, and a total of 57 patents were issued under the Patent Act of 1790, before it was replaced with the Patent Act of 1793, which among other things, eliminated examination!
On May 31, 1790, Washington signed into law the first Copyright Act. Prior to the passage of the Constitution, several states passed their own copyright laws between 1783 and 1787, the first being Connecticut. This Copyright Act of 1790 granted authors the exclusive right to publish and vend “maps, charts and books” for a term of 14 years, renewable for one additional 14-year term, if the author was alive at the end of the first time. The Copyright Action of 1790 had a longer run than the Patent Act of 1790, being amended in 1802 and 1819, and replaced by the Copyright Act of 1831.
The movie Jaws premiered forty-nine years ago today. U.S. Patent No. 4602384, which issued July 29, 1986, on an Aquatic Attack Protection Suit and Material Therefor may have been inspired by the 1975 movie:
A few years earlier in 1982 Jeremiah Sullivan received U.S. Patent No. 4356569 on an Armored Skin Diving Suit:
Is it really skin diving if you are wearing armor? Inventors Nelson and Rosetta Fox took the concept further in their 1989 U.S. Patent No. 4833729 on a Shark Protector Suit:
However, shark protection technology predates Jaws. In 1966 Donal Prasser received U.S. Patent No. 3284806 on a Protective Garment that essentially employed chainmail to ward off sharks and other predators:
The publicity for Jaws warned “You’ll Never Go In The Water Again.” But once again, inventors have our backs. They have protected us from sharks (but what’s going to protect us from shark suits?
