Flash of Genius

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Thanks appreciate it… but I was actually talking about the movie not my blog. I finally saw it yesterday or 75% of it. I was busy doing other things. Good movie overall and since it is about cars, it will end up on the shelf in the “world’s greatest garage.” Yes, that would be my garage as awarded by non-other than EMPM Esq. Actually, I’m surprised it isn’t there already. Hold please… nope not there. Actually, I think the movie should have been called Flash of Genius, Become a Patent Attorney.

Filing for patents and being granted five of them around one “simple” invention, the intermittent wiper, is da’ bomb of patenting in my humble opinion. In 1993, I researched my own automotive patents around the steering wheel. I still have the book from my lawyer that contained all the “prior art.” Prior art is the existing patents and their claims you need to navigate around or “clear” in order to be considered for issuance. Been there didn’t do that.

The other critical part of being granted a patent is meeting the test of “nonobviousness.” The rationale behind the nonobviousness requirement is that the patent system should reward true contributions to industry, rather than create squatters’ rights on basic elements of industry. Or stated another way, meaning that a “person having ordinary skill in the art” would not know how to solve the problem at which the invention is directed by using exactly the same mechanism.

If we look at the arguments that held up for Dr. Kearns, the inventor of the intermittent wiper, he rearranged transistors and capacitors to make a new product. GM, Ford and Chrysler had been working on it for years but couldn’t do it. Therefore, it was not obvious.

My steering wheel ideas were riddled with prior art starting with inventions from the early 1900’s. While I’ve never actually seen my idea in practice 16 years later, that doesn’t mean (and according to my legal counsel) I had a shot at getting any patents. Too obvious. Translation: extreme amount of money to prosecute the patent so I passed.

Keep in mind the job of a Washington DC patent examiner is to deny your claim. In fact, the first paperwork you get back is typically a denial. It is your job, and your hourly paid lawyer’s job, to re-prove your claim. This can take months, even years. The DC examiner will continue to throw new prior art at you, saying you do not clear this hurdle. It takes research, well written replies plus rewrites of your original specs and claims to satisfy the examiner yet still have something worth gold. Gold Jerry gold. Don’t forget, once you get it you have to defend it. More lawyers, more fees and god forbid you have to go up against a “Ford” with deep pocket-pools of the best lawyers money can buy.

Samuel Hopkins was issued the first patent for a process of making potash, an ingredient used in fertilizer. The patent was signed by President George Washington on July 31, 1790. In the 219 years since, patents and prosecution have changed dramatically especially with software and IP patents. One thing remains the same though, be prepared with a lot of money and a big pile of potash. Because when it’s all said and done, you are going to need a way to adjust the speed of your head from spinning around.

Have a great loooong weekend!

2 Responses

  1. Dennis Kearns

    Believe me Bob Kearns patents were tested over and over.

    Winning 5 jury trials, overcoming 300+ prior inventions, being held valid and infringed.

    If there had been any way to prove Bob Kearns claims wrong the 20+ automotive manufacturers he sued would have found them.

    http://Dennis-Kearns.com

  2. Paul "Groosh" Grusche

    Thank you for the comment Dennis. Your note motivated me to read more about your father and his invention. I found the interview and story at Autoweek fascinating (link below).

    At a company I am a partner in, Ultramercial, we are starting patent litigation against the “Fords” of our industry. Your father’s story and the movie rang very true beyond my steering wheel endeavors.

    All the best to you and your family.

    http://www.autoweek.com/apps/pbcs.dll/article?AID=/20080929/FREE/809299993/1530/FREE

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