What would not be permitted to be incorporated by reference in your client’s U.S. utility patent application?
(A) Essential material from a U.S. patent.
(B) Essential material from a foreign application.
(C) Non-essential material from a prior filed, commonly owned U.S. application.
(D) Essential material from a magazine article.
(E) (B) and (D).
“So-called … plumber’s crack is a known, unsightly, and unfortunately overly common problem wherein the waistband of a pair of pants does not ride sufficiently high over the hips of the wearer. …the sitting, squatting, or bending motion urges the waistband downward exposing the upper portion of the buttocks cleavage. Although male wearers may not be overly concerned with exposing the buttocks cleavage, many female wearers would rather not inadvertently expose their buttocks cleavage.” Fair enough, how do we solve this problem?
Jeepers Creepers, where did you get those eyes? The natural solution is an adhesive patch that not only covers the buttocks, but also gives a scornful stare back at those ogling men. This patent consists of two components. The first is an adhesive layer that sticks to the skin of the area of the body to be covered. Second, an artistic layer is then applied to the base layer. I hope they intended to sell artistic designs other than the glaring eyes in the drawing, because I don’t like the feeling of being watched.
Such a shame this patent was never granted, because it seems so effective that it would be sure to be a winner in the market. However, notice that the market is totally redefined from the patent for the Garment Having a Buttocks Cleavage Revealing Feature. Yes, I am sure these products are intended for different age groups, but one man’s problem seems to be another man’s goal. On the other hand, the patent application for the patch came after the revealing pants patent. Maybe there is some connection.
A patent application filed in the PTO claims a nylon rope coated with element E for the purpose of preventing breakage of the rope. In the first Office action, the examiner rejects the claim as obvious over P in view of a trade journal publication, T. P teaches a nylon rope coated with resin for the purpose of making the rope waterproof. T teaches a nylon tent fabric coated with element E for the purpose of making the tent waterproof, and suggests the use of element E for making other nylon products waterproof. Following proper PTO practices and procedures, the combination of P and T:
(A) cannot support a prima facie case of obviousness because T lacks a suggestion to
combine with P for the purpose of preventing breakage in nylon rope.
(B) cannot support a prima facie case of obviousness because P lacks a suggestion to
combine with T for the purpose of preventing breakage in nylon rope.
(C) cannot support a prima facie case of obviousness because T only contains a
suggestion to combine with P for the purpose of waterproofing nylon rope.
(D) can support a prima facie case of obviousness, even though T only contains a
suggestion to combine with P for the purpose of waterproofing nylon rope.
(E) can support a prima facie case of obviousness because the applicant is always
under an obligation to submit evidence of non-obviousness regardless of whether
the examiner fully establishes a prima facie case of obviousness.
Past Exam Question
Abigail has invented a novel watering mechanism for a flower pot. The flower pot also possesses a unique ornamental design. Abigail consults with patent practitioner P for advice on the differences between a design patent and a utility patent. Which of the following general statements regarding design and utility patents, if made by P, would be accurate?
(A) A “utility patent” protects the way an article is used and works, while a “design patent” protects the way an article looks.
(B) Unlike utility patent applications, a design patent application may not make a claim for priority of a provisional patent application.
(C) Maintenance fees are required for utility patents, while no maintenance fees are required for design patents.
(D) Both design and utility patents may be obtained on an article if the invention resides both in its utility and ornamental appearance.
(E) All of the above
If you’ve been working on a way to see more butts, the solution has already been patented! Seems like those footie pajamas complete with buttflap would have precluded this invention (or maybe certain leather chaps).
There are three theoretical hurdles to obtaining your new utility patent; the subject matter must be useful, novel, and nonobvious. Yes, this is a utility patent. This patent contains multiple claims and design patents are only allowed to have one claim. See 37 CFR 1.153(a).
Usefulness is satisfied when there is beneficial use of the invention. The patent claims that these pants provide beneficial use to those that find tight, low-rise jeans uncomfortable but would like to incorporate a revealing feature. This claim is correct in that the pants are revealing. However, the wearer is unlikely to find the pants comfortable, because going commando would seem to allow a draft.
Novelty is satisfied when the patent has not been anticipated by prior art or public use more than a year prior to the critical date. Public use occurs when the product has been tested and examined by a PHOSITA. However, every element of the subject matter must be anticipated. Maybe the prior art just didn’t anticipate a cut-out of the chevy symbol revealing cleavage!
Non-obviousness is similar to novelty, but includes the entire field of the invention. For example, a toothbrush patent would be included in the universe of prior art for a new hair brush patent. I think a PHOSITA could have adapted buttless chaps to anticipate this patent easily.
This product could be wonderful in a few situations. The pants send such a clear message that even the most distant father would cringe to see his daughter in them. There are, however, people that should steer clear of these things (cite people of Walmart). Quite frankly, Americans are still a conservative bunch. Dresses revealing butt cleavage have been popular in France for years.
Do you think a PHOSITA could have figured this out based on buttless chaps and pajamas with the buttflap as prior art? – comment below
Sources
http://www.google.com/patents/US6473908
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