You can see D714,495 here, if you’d like, or you can look at the full patent embedded below. It’s important to note that this is a design patent, rather than a utility patent. Design patents are a lot more like trademarks than what many people think of as a regular “patent.” But still. It appears the unique “design” element is that this toothpick has those lines up top. But I’ve had toothpicks like that many times in the past. It’s hardly a new design. Just doing a super quick search, I came across this page, which includes this picture:
But, thanks to the geniuses at the USPTO, anyone now selling a toothpick “substantially similar” to the design in the image above can be stopped and have to pay up.
there’s a function to those lines at the top. you break the toothpick there and use the stub as a rest for the tip of the toothpick the way you fold up your chopstick wrapper into a triangular rest for your chopsticks.
TruthHurtssays:
Re: not just lines
Regardless whether decorative or functional, these “designs” have existed for decades and are not new, therefor the patent is invalid and the Patent Office employee should be fired and checked to see if they’ve been lobotomized as it appears they may have been a pointy-haired-boss at some time in their past, and we know that to be considered for upper management, you must have at least one lobotomy, preferably 2 or 3 to really go places in management.
here’s a function to those lines at the top. you break the toothpick there and use the stub as a rest for the tip of the toothpick the way you fold up your chopstick wrapper into a triangular rest for your chopsticks.
Design patents can only be for the ornamental design, not the functional aspects of the product… Either way, it’s not new.
Design patents can only be for the ornamental design, not the functional aspects of the product… Either way, it’s not new.
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?
Anonymous Cowardsays:
Re: Re: Re: not just lines
Says the jackass that just can’t stop himself from mindless Techdirt bashing. Pathetic.
Says the jackass that just can’t stop himself from mindless Techdirt bashing. Pathetic.
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.
But you haven’t demonstrated that this design is not new. The toothpicks you pictured above are different.
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.
I’m not the one posting the patent and implying that it’s not valid because I found something kind of similar with a quick search. I’m not claiming it’s valid or invalid. I’m merely pointing out that Mike didn’t actually back up his implication that this patent is invalid. If it were me, I’d identify the standard and then explain why I think it meets or doesn’t meet that standard here. You know, I’d discuss the actual law when reaching a legal conclusion. But that’s just me.
Can you show me this prior art that is “substantially similar,” under the appropriate meaning of that test, for this toothpick?
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?
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?
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.
Anonymous Cowardsays:
Re: Re: Re:3 not just lines
I’m merely pointing out that Mike didn’t actually back up his implication that this patent is invalid.
And I’m merely pointing out that you didn’t actually back up your implication that this patent is valid.
And I’m merely pointing out that you didn’t actually back up your implication that this patent is valid.
I did not imply it’s valid. I pointed out that Mike didn’t show it’s invalid. There’s a difference.
Anonymous Cowardsays:
Re: Re: Re:5 not just lines
The burden is (or should be) on patent proponents to substantiate the validity of a patent, not the other way around.
Anonymous Cowardsays:
Re: Re: Re:5 not just lines
And that, right there, is one of the key problems with the patent system. You don’t have to prove your patent is valid. It’s only when you sue someone, then they have to prove, at their cost, that your patent is invalid. That’s backwards.
And that, right there, is one of the key problems with the patent system. You don’t have to prove your patent is valid. It’s only when you sue someone, then they have to prove, at their cost, that your patent is invalid. That’s backwards.
Doesn’t the would-be patentee prove the patent is valid during prosecution?
By making it through the patent application process it’s already assumed to be ‘valid’ once it reaches court, it’s up to the defendant to prove otherwise, at their own cost.
Anonymous Cowardsays:
Re: Re: Re:3 not just lines
You make fair points, and it is disappointing to find even non-argumentative comments marked as having been reported by either readers on this site or by its principals.
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.
You make fair points, and it is disappointing to find even non-argumentative comments marked as having been reported by either readers on this site or by its principals.
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.
It wasn’t mindless bashing, he put lots of thought into bashing IP in this article.
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.
Anonymous Cowardsays:
Re: Re: Re:3 not just lines
Is that like when you were challenged and disappeared for months? Those were good times.
Is that like when you were challenged and disappeared for months? Those were good times.
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!
Anonymous Cowardsays:
Re: Re: Re:5 not just lines
You disappeared, and for months we had a barnyard making chicken noises.
Did anyone commenting here consider that the toothpicks in the link from Michael (patent fool) Masnick has 3 indentations, and the design of the design patent shows 2 indentations.
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.
Anonymous Cowardsays:
Re: Re: not just lines
@Mark Syman:
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.
The patentability of a design (shape) extends to every nuance, the size of the stripes, the number of stripes, even the curvature and size of the pick. Every feature must be shown in another reference, in complete detail. Apparently, no reference exactly like this toothpick exists. Show me a reference, and chances are, I can point out a difference between the reference and this pick, however small. On the other hand, to infringe, the infringing toothpick must be exactly the same as in this toothpick patent.
The USPTO, once again ensuring the public’s continued respect for the patent system. /s
Anonymous Cowardsays:
Remember when a product’s brand name was enough to distinguish it from the competition? Those were the good days. We need to go back to those days, when preventing counterfeits and confusion was the primary purpose of trademark law.
Design patents, as it’s stated in the claim, cover the ornamental design of the object. The appearance, that’s it. The newly patent design is plainly different from the photographed designs – therefore patentable.
“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.
Anonymous Cowardsays:
Re: Design patents
You are not thinking like the patent owner, plainly different for the application, means that on close inspection the design differs from existing designs, and when it comes to using the patent as a weapon, substantially similar means that it has some vaguely similar features.
Anonymous Cowardsays:
Re: Design patents
“Substantially similar” in this case means virtually identical in appearance.
Not to some judges.
DCLsays:
Re: Re: Design patents
Sadly only few judges notice the difference and none of them are in Texas.
“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.
“Substantially similar” seems rather less defined than you make out. Looks like “even faintly similar” is more than enough to start an expensive lawsuit over these things… Reality seems to suggest than anyone making the toothpicks shown is likely going to get sued.
Anonymous Cowardsays:
Re: Re: Design patents
The patentee being from Japan, experience teaches me that the likelihood of a lawsuit is very remote. Any such lawsuit would be precipitated by only the most egregious of acts having a profound effect on the patentee’s business, requirements that set a very, very high bar.
Anonymous Cowardsays:
Re: Re: Design patents
@Not an Electronic Rodent:
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.
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.
Really? The three links seem to show that a faintly similar shape of design, a faintly similar font or a vaguely similar (obvious and logical) positioning of a different logo is more than enough excuse to sue.
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.
Anonymous Cowardsays:
Re: Re: Re:2 Design patents
@Not an Electronic Rodent@Oct. 4th, 2014@8:42am:
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.
Anonymous Cowardsays:
i’m sorry but i just cant believe these idiots! the next thing, they’ll be sticking a patent on child birth!
No Onesays:
Re: Re:
Fortunately the patent on human genes was invalidated… but – yeah – it’s scary.
patently obvious ? Does that imply you, or someone, owns a patent to how obvious it is?
Anonymous Cowardsays:
I'm applying for a design patent
for a cylindrical, graphite-element shaft of transferrable marking material surrounded by a hexagonal wooden sheath and topped on one end with a pink synthetic rubber substance.
zipsays:
The patent is very vague. Are we to assume this patent covers all toothpicks with two cannelures (of any shape) cut into them?
DCLsays:
Re: Re:
Unfortunately at this point you would have to spend lots of time and money in court to get a ruling that the patent isn’t applicable to all toothpicks with two cut outs in them.
In the meanwhile the patent owner will probably make a decent living getting paid to not sue companies that make toothpicks with cutouts.
Anonymous Cowardsays:
What a planet it's turning into
What must Martians be thinking of those odd creatures that spend time filling in forms and making drawings and irritating their fellow creatures, and the other creatures that argue about the forms, instead of everyone doing something productive such as growing turnips. At times like this I think of turning the internet off and doing something useful like digging holes and re-filling them.
Anonymous Cowardsays:
Re: What a planet it's turning into
Growing turnips sounds like it might involve work. Why would you do that if you can ways to make other people give you money instead?
Anonymous Cowardsays:
how long before someone patents a soul, give them a basis for claiming to own everyone
What if by granting a patent, you were required to give the patent office a royalty on the profits of any product that used the patent, similar to a sales tax (though it would have to scale so you could have many patents on a single product). If you don’t have products using the patent, then you can’t sue for punitive (treble) damages. Loss-of-sales damages would be based on sales calculated through the royalty, so if you don’t register a patent on a product then you can’t collect loss of sales from an infringer.
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”.
A lot of the comments seem to be confusing patents with design patents. Design patents are a very different thing, and are really more like trademarks than patents in many ways. They aren’t claiming an invention or the rights to an invention. These are all about the art and ornamentation alone, and the purpose is to allow people and companies to use the design of a thing as kind of trademark, so it uniquely identifies a specific entity.
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.
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.
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.
“A lot of the comments seem to be confusing patents with 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.
My understanding is that the design patent is for a particular object. In the coke bottle example, the design patent is on bottles that have that shape. A picture of a bottle shaped like that would not violate the patent, since a picture is not a bottle.
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.
Copyright prevents all uses of the work that is copyrights. Trademark does not: it only prevents commercial use within the same product category that might be confusing to the consumer. In this sense, a design patent is more like a trademark.
Anonymous Cowardsays:
Those are lines, not grooves...
A couple of points here…
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.
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.
A voice of reason. Thank you.
Anonymous Cowardsays:
Re: Those are lines, not grooves...
…not to mention that the distal end of the toothpick is conical, which adds another feature to the product as a whole. Transverse, striped bands proximate one end, a cone having a sharp point at the other, and a cylindrical cross-section for most of the length of the product combine to present a product that I do not believe is commonplace.
Bingo! Although I’ll take some exception to the nominally functional part not being eligible for design patents. We (my employer) do it pretty often and other companies as well. Check out the design patent for the Mach Razor blades.
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.
I don’t know what this Masnick person’s credentials are, but he must have a graduate degree in generating controversy for no reason.
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.
Oh oops, say it’s not so. An entirely argumentative post against design patents that is totally wrong?
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.
Anonymous Cowardsays:
Re: Re: Re:2 Those are lines, not grooves...
Why this has been reported and is now hidden behind a “click wall” can only be due to the name of the commenter, and not the substance of his/her comment.
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.
I’ll be the odd man out and disagree with Mike (and most of you).
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.
Sigh…this design patent does not cover ANY grooves, because the design patent has NO grooves. Those are colored stripes…
Thank you.
Anonymous Cowardsays:
Re: Re: There ain't no GROOVES!!!
I can easily understand why this comment is viewed as reportable. It is a comment made to people who like to think that they stand on the front lines from which free speech over the Internet is preserved.
All questions about whether the patent is actually valid or not… What is a patent like that even meant to accomplish?
Anonymous Cowardsays:
Re: Re:
Frankly, the patent is most likely silly because design only last for 14 years from the date of issue. The design patent is for two colored stripes. I tried to find an image, but have been unable to do so. My best guess is that the colors chosen match a restaurant, bar, or particular sports team. Or perhaps someone is making a specialty toothpick. Regardless, while interesting, the financial benefit to such a design patent is most likely not from the toothpicks, but from where they are used.
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.
Bob Robertsonsays:
The purpose of the Patent system
The purpose of the patent system is full-employment for lawyers.
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.
Anonymous Cowardsays:
Re: The purpose of the Patent system
@Bob Robertson, Oct. 6th, 2014@8:45am:
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).
Regardless of the what is the functions of the two cut-outs, design patents only focus on the design alone, the ornaments or the art. What is important is that the design to be unique. (correct me if I’m wrong)
The design of the patented one is quite confusing and there is hardly any difference compared to the toothpicks in the picture above.
Anonymous Cowardsays:
Re: Re:
Why is the design of the patent toothpick confusing? The patent says that the design is for two colored stripes. Two colored stripes (apparently, the colors are important as well, but I am still unable to find a picture of the specific colors) is HARDLY ANY DIFFERENCE from two grooves? Really? I would say two painted bands of specific colors is substantially different from two portions removed from the wood. Not even vaguely close to each other.
I agree, the 2 painted bands are much different than grooves. Just goes to show you how incognitive some people are. And they send letters to their Congressman saying that patents are ruining their life. Oh brother. Alexa Jackson should get a job at the CDC.
Comments on “Design Patent Granted… On A Toothpick”
not just lines
there’s a function to those lines at the top. you break the toothpick there and use the stub as a rest for the tip of the toothpick the way you fold up your chopstick wrapper into a triangular rest for your chopsticks.
Re: not just lines
Regardless whether decorative or functional, these “designs” have existed for decades and are not new, therefor the patent is invalid and the Patent Office employee should be fired and checked to see if they’ve been lobotomized as it appears they may have been a pointy-haired-boss at some time in their past, and we know that to be considered for upper management, you must have at least one lobotomy, preferably 2 or 3 to really go places in management.
Re: not just lines
here’s a function to those lines at the top. you break the toothpick there and use the stub as a rest for the tip of the toothpick the way you fold up your chopstick wrapper into a triangular rest for your chopsticks.
Design patents can only be for the ornamental design, not the functional aspects of the product… Either way, it’s not new.
Re: 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.
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?
Re: Re: Re: not just lines
Says the jackass that just can’t stop himself from mindless Techdirt bashing. Pathetic.
Re: Re: Re:2 not just lines
Says the jackass that just can’t stop himself from mindless Techdirt bashing. Pathetic.
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.
Re: Re: Re:3 not just lines
Your point is bullshit since the patent system IS degraged already to the point were it’s effectivle doing the opposite of what it’s supposed to.
Re: 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 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.
Re: Re: Re:2 not just lines
I’m not the one posting the patent and implying that it’s not valid because I found something kind of similar with a quick search. I’m not claiming it’s valid or invalid. I’m merely pointing out that Mike didn’t actually back up his implication that this patent is invalid. If it were me, I’d identify the standard and then explain why I think it meets or doesn’t meet that standard here. You know, I’d discuss the actual law when reaching a legal conclusion. But that’s just me.
Re: Re: Re:3 not just lines
I’m not the one posting the patent and implying that it’s not valid because I found something kind of similar with a quick search.
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.
Re: Re: Re:4 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?
Can you show me this prior art that is “substantially similar,” under the appropriate meaning of that test, for this toothpick?
Re: Re: Re:5 not just lines
Can you show me this prior art that is “substantially similar,” under the appropriate meaning of that test, for this toothpick?
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?
Re: Re: Re:6 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?
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.
Re: Re: Re:3 not just lines
I’m merely pointing out that Mike didn’t actually back up his implication that this patent is invalid.
And I’m merely pointing out that you didn’t actually back up your implication that this patent is valid.
Re: Re: Re:4 not just lines
And I’m merely pointing out that you didn’t actually back up your implication that this patent is valid.
I did not imply it’s valid. I pointed out that Mike didn’t show it’s invalid. There’s a difference.
Re: Re: Re:5 not just lines
The burden is (or should be) on patent proponents to substantiate the validity of a patent, not the other way around.
Re: Re: Re:5 not just lines
And that, right there, is one of the key problems with the patent system. You don’t have to prove your patent is valid. It’s only when you sue someone, then they have to prove, at their cost, that your patent is invalid. That’s backwards.
Re: Re: Re:6 not just lines
And that, right there, is one of the key problems with the patent system. You don’t have to prove your patent is valid. It’s only when you sue someone, then they have to prove, at their cost, that your patent is invalid. That’s backwards.
Doesn’t the would-be patentee prove the patent is valid during prosecution?
Re: Re: Re:7 not just lines
By making it through the patent application process it’s already assumed to be ‘valid’ once it reaches court, it’s up to the defendant to prove otherwise, at their own cost.
Re: Re: Re:3 not just lines
You make fair points, and it is disappointing to find even non-argumentative comments marked as having been reported by either readers on this site or by its principals.
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.
Re: Re: Re:4 not just lines
You make fair points, and it is disappointing to find even non-argumentative comments marked as having been reported by either readers on this site or by its principals.
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.
Re: Re: Re: not just lines
DDG search for ‘Toothpick’, 5 seconds, 7th result in images. If I really cared to, I’m sure I could find many more just like it.
http://www.american.com/graphics/2007/november/Glorious%20Toothpick2.jpg
Re: Re: Re: not just lines
It wasn’t mindless bashing, he put lots of thought into bashing IP in this article.
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.
Re: Re: Re:2 not just lines
It wasn’t mindless bashing, he put lots of thought into bashing IP in this article.
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.
Re: Re: Re:3 not just lines
Is that like when you were challenged and disappeared for months? Those were good times.
Re: Re: Re:4 not just lines
Is that like when you were challenged and disappeared for months? Those were good times.
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!
Re: Re: Re:5 not just lines
You disappeared, and for months we had a barnyard making chicken noises.
Re: not just lines
Did anyone commenting here consider that the toothpicks in the link from Michael (patent fool) Masnick has 3 indentations, and the design of the design patent shows 2 indentations.
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.
Re: Re: not just lines
@Mark Syman:
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.
Re: Re: Re: not just lines
The patentability of a design (shape) extends to every nuance, the size of the stripes, the number of stripes, even the curvature and size of the pick. Every feature must be shown in another reference, in complete detail. Apparently, no reference exactly like this toothpick exists. Show me a reference, and chances are, I can point out a difference between the reference and this pick, however small. On the other hand, to infringe, the infringing toothpick must be exactly the same as in this toothpick patent.
Do I see round corners at the tip with the stripes? Apple may have a thing or two to say here.
Prior art
Prior art exists for this – Apple INVENTED slightly-rounded corners. GIVE THEM ALL OF THE MONEY
The USPTO, once again ensuring the public’s continued respect for the patent system. /s
Remember when a product’s brand name was enough to distinguish it from the competition? Those were the good days. We need to go back to those days, when preventing counterfeits and confusion was the primary purpose of trademark law.
Re: Re:
pepperidge farms remembers…
Design patents
Design patents, as it’s stated in the claim, cover the ornamental design of the object. The appearance, that’s it. The newly patent design is plainly different from the photographed designs – therefore patentable.
“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.
Re: Design patents
You are not thinking like the patent owner, plainly different for the application, means that on close inspection the design differs from existing designs, and when it comes to using the patent as a weapon, substantially similar means that it has some vaguely similar features.
Re: Design patents
“Substantially similar” in this case means virtually identical in appearance.
Not to some judges.
Re: Re: Design patents
Sadly only few judges notice the difference and none of them are in Texas.
Re: Design patents
“Substantially similar” seems rather less defined than you make out. Looks like “even faintly similar” is more than enough to start an expensive lawsuit over these things… Reality seems to suggest than anyone making the toothpicks shown is likely going to get sued.
Re: Re: Design patents
The patentee being from Japan, experience teaches me that the likelihood of a lawsuit is very remote. Any such lawsuit would be precipitated by only the most egregious of acts having a profound effect on the patentee’s business, requirements that set a very, very high bar.
Re: Re: Design patents
@Not an Electronic Rodent:
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.
Re: Re: Re: Design patents
Really? The three links seem to show that a faintly similar shape of design, a faintly similar font or a vaguely similar (obvious and logical) positioning of a different logo is more than enough excuse to sue.
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.
Re: Re: Re:2 Design patents
@Not an Electronic Rodent@Oct. 4th, 2014@8:42am:
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.
i’m sorry but i just cant believe these idiots! the next thing, they’ll be sticking a patent on child birth!
Re: Re:
Fortunately the patent on human genes was invalidated… but – yeah – it’s scary.
I think I will patent breathing. There will be about six minutes to cough up the license fee. Infringers will be patently obvious.
Re: Re:
patently obvious ? Does that imply you, or someone, owns a patent to how obvious it is?
I'm applying for a design patent
for a cylindrical, graphite-element shaft of transferrable marking material surrounded by a hexagonal wooden sheath and topped on one end with a pink synthetic rubber substance.
The patent is very vague. Are we to assume this patent covers all toothpicks with two cannelures (of any shape) cut into them?
Re: Re:
Unfortunately at this point you would have to spend lots of time and money in court to get a ruling that the patent isn’t applicable to all toothpicks with two cut outs in them.
In the meanwhile the patent owner will probably make a decent living getting paid to not sue companies that make toothpicks with cutouts.
What a planet it's turning into
What must Martians be thinking of those odd creatures that spend time filling in forms and making drawings and irritating their fellow creatures, and the other creatures that argue about the forms, instead of everyone doing something productive such as growing turnips. At times like this I think of turning the internet off and doing something useful like digging holes and re-filling them.
Re: What a planet it's turning into
Growing turnips sounds like it might involve work. Why would you do that if you can ways to make other people give you money instead?
how long before someone patents a soul, give them a basis for claiming to own everyone
At least we know...
… Next month’s stupid patent winner…
What If - Out of the box
What if by granting a patent, you were required to give the patent office a royalty on the profits of any product that used the patent, similar to a sales tax (though it would have to scale so you could have many patents on a single product). If you don’t have products using the patent, then you can’t sue for punitive (treble) damages. Loss-of-sales damages would be based on sales calculated through the royalty, so if you don’t register a patent on a product then you can’t collect loss of sales from an infringer.
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”.
The confusion of design patents
A lot of the comments seem to be confusing patents with design patents. Design patents are a very different thing, and are really more like trademarks than patents in many ways. They aren’t claiming an invention or the rights to an invention. These are all about the art and ornamentation alone, and the purpose is to allow people and companies to use the design of a thing as kind of trademark, so it uniquely identifies a specific entity.
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.
Re: The confusion of design patents
I think that what matters is that a design be different than any other design patent already issued.
No.
Re: 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.
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.
Re: Re: The confusion of design patents
Ahh, that was a very helpful link, thank you.
Re: The confusion of design patents
“A lot of the comments seem to be confusing patents with 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.
Re: Re: The confusion of design patents
My understanding is that the design patent is for a particular object. In the coke bottle example, the design patent is on bottles that have that shape. A picture of a bottle shaped like that would not violate the patent, since a picture is not a bottle.
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.
Re: Re: The confusion of design patents
My confusion is the difference between design patents and trademarks.
I was thinking it’s more like a copyright than a trademark.
Re: Re: Re: The confusion of design patents
Copyright prevents all uses of the work that is copyrights. Trademark does not: it only prevents commercial use within the same product category that might be confusing to the consumer. In this sense, a design patent is more like a trademark.
Those are lines, not grooves...
A couple of points here…
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.
Re: 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.
A voice of reason. Thank you.
Re: Those are lines, not grooves...
…not to mention that the distal end of the toothpick is conical, which adds another feature to the product as a whole. Transverse, striped bands proximate one end, a cone having a sharp point at the other, and a cylindrical cross-section for most of the length of the product combine to present a product that I do not believe is commonplace.
Re: Those are lines, not grooves...
Bingo! Although I’ll take some exception to the nominally functional part not being eligible for design patents. We (my employer) do it pretty often and other companies as well. Check out the design patent for the Mach Razor blades.
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.
Re: 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.
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.
Re: Re: Those are lines, not grooves...
Oh oops, say it’s not so. An entirely argumentative post against design patents that is totally wrong?
That NEVER happens on Techdirt.
Re: Re: Re: Those are lines, not grooves...
Oh oops, say it’s not so. An entirely argumentative post against design patents that is totally wrong?
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.
Re: Re: Re:2 Those are lines, not grooves...
Why this has been reported and is now hidden behind a “click wall” can only be due to the name of the commenter, and not the substance of his/her comment.
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.
This is OK
I’ll be the odd man out and disagree with Mike (and most of you).
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.
Re: This is OK
I’ll be the odd man out and disagree with Mike (and most of you).
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.
There ain't no GROOVES!!!
Sigh…this design patent does not cover ANY grooves, because the design patent has NO grooves. Those are colored stripes…
Re: There ain't no GROOVES!!!
Sigh…this design patent does not cover ANY grooves, because the design patent has NO grooves. Those are colored stripes…
Thank you.
Re: Re: There ain't no GROOVES!!!
I can easily understand why this comment is viewed as reportable. It is a comment made to people who like to think that they stand on the front lines from which free speech over the Internet is preserved.
All questions about whether the patent is actually valid or not…
What is a patent like that even meant to accomplish?
Re: Re:
Frankly, the patent is most likely silly because design only last for 14 years from the date of issue. The design patent is for two colored stripes. I tried to find an image, but have been unable to do so. My best guess is that the colors chosen match a restaurant, bar, or particular sports team. Or perhaps someone is making a specialty toothpick. Regardless, while interesting, the financial benefit to such a design patent is most likely not from the toothpicks, but from where they are used.
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.
The purpose of the Patent system
The purpose of the patent system is full-employment for lawyers.
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.
Re: The purpose of the Patent system
@Bob Robertson, Oct. 6th, 2014@8:45am:
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).
Regardless of the what is the functions of the two cut-outs, design patents only focus on the design alone, the ornaments or the art. What is important is that the design to be unique. (correct me if I’m wrong)
The design of the patented one is quite confusing and there is hardly any difference compared to the toothpicks in the picture above.
Re: Re:
Why is the design of the patent toothpick confusing? The patent says that the design is for two colored stripes. Two colored stripes (apparently, the colors are important as well, but I am still unable to find a picture of the specific colors) is HARDLY ANY DIFFERENCE from two grooves? Really? I would say two painted bands of specific colors is substantially different from two portions removed from the wood. Not even vaguely close to each other.
Re: Re: Re:
I agree, the 2 painted bands are much different than grooves. Just goes to show you how incognitive some people are. And they send letters to their Congressman saying that patents are ruining their life. Oh brother. Alexa Jackson should get a job at the CDC.