Day 429: Ready, Aim, Sue! (Patent Law Edition)

originally published March 4, 2013

Not long ago, during that fabulous festive quartet of articles known as Vegas Week, I pointed out that the Welcome To Fabulous Las Vegas sign was created by Betty Willis and released into the world with no copyright. Betty wanted that design to be her gift to the city she loved, and the fact that it has been used on every sort of merchandising from ashtrays to diaphragms to IV tubing with no residuals whatsoever, hasn’t bothered her. Luckily for patent lawyers, that sort of thing doesn’t happen much in the world of patent law.

Inventors are the crafty citizens who see the world for what it lacks, then aim to fill the void. Maybe it’s as simple as taking something that already exists and putting a clock or a radio in it, or maybe the process is more elaborate, as something truly fresh and innovative is brought from a concept to reality, changing the way people live.

And then, sometimes people steal it.

When Michael Powell, a Florida-based independent contractor for Home Depot, observed that employees tended not to enjoy having their hands severed whilst using the radial arm saws in the store, he decided to do something about it. He put together a prototype of a device that virtually eliminated the likelihood of employee injury, something he called a ‘Safe Hands’ device. His Home Depot was impressed. So impressed, they apparently tried to buy the idea from him.

The price wasn’t right, so Home Depot enlisted someone else to build a copycat device. They took these clones, which may or may not have been called ‘Secure Paws’, and had them installed in more than 2000 of their stores. Powell sued for patent infringement and won a tidy sum of $15 million from the jury. They also believed Home Depot’s sneaky tactics were deliberate, which prompted the judge to up the damages to a hefty $24.5 million. I strongly suspect Mr. Powell terminated his professional relationship with the Depot and retired to a beach somewhere.

The case of Egbert v. Lippmann didn’t go quite so smoothly. First off, neither involved party appears to be named Egbert or Lippmann, so right off the bat I’m confused. In fact, those names don’t show up anywhere in the case, as far as I can see. This case was filed in 1881 though, so maybe it was common practice to substitute random names in order to keep later generations of law students guessing.

Samuel Barnes came up with some snazzy new ‘corset-steels’, or springs to hold a corset together, in 1855. He gave them to Frances, his girlfriend, who wore them as often as women wore corsets in the 1850’s, whatever that might be (three times a week?). In 1863, they showed the invention to Samuel’s buddy, Joseph Sturgis. A couple years later, the design was starting to show up in off-the-rack corsets, and Samuel applied for a patent. He and Frances (now his wife) then sued Sturgis for patent infringement.

After rolling down the legislative aisle all the way to the Supreme Court, Samuel’s case got tossed. He’d waited too long, and the product had been in use for eleven years before Samuel applied for a patent. Despite lone holdout Justice Samuel Freeman Miller’s belief that ‘been in use’ doesn’t count when the device was stashed away inside Frances’ dress, the court ruled against him. The moral here: if you invent something, patent the crap out of it right away.

Sometimes tangling with a giant corporation is just bad news. Fujifilm holds the patent on single-use disposable cameras. After these things get turned in for processing, some company refurbishes them and they get loaded up and sold again. A company called Jazz Photos found a factory in China where disposables originally sold outside the US got refurbished. Jazz bought up a boatload of these refurbished units from the factory and sold them as their own product.

Fuji was not impressed.

They cranked up their sue-phasers to ‘Kill’, cocked them sideways, gangsta-style, and opened fire on Jazz Photos and its owner, Jack C. Benun. Jazz and Benun collapsed like a pair of unnamed Klingon hood-thugs, both declaring bankruptcy after being handed a UOI (like a backwards IOU) by Fujifilm for $30 million.

A slightly more fair fight took place in 1938 between Kellogg’s and Nabisco, then known as the National Biscuit Company. They were both fighting over the right to make and sell Shredded Wheat cereal, a product which sells extremely well despite tasting like an unused paintbrush.

The patent for the wheat-shredding machine (surprisingly not invented by the same guy who invented the flake-frosting machine or the Cheerio-honey-nutting machine) ran out in 1912 and Kellogg’s began marketing their own version right away. The Shredded Wheat people objected, and Kellogg’s backed off for a while. They started up again in the late 1920’s, around the time Nabisco bought up the Shredded Wheat company. Nabisco then sued to have exclusivity on the name, the process, and indeed the entire Shredded Wheat frame of mind (which it totally is).

Given that the patents on the machine had expired, and that the name literally described the flavorless wheat-turd inside the box, Nabisco was out of luck.

In 2002, the San Jose-based tech company Immersion declared war on Sony and Microsoft at the same time, and won. These are the folks who invented that force-feedback vibration that adds a visceral vibratyness to console video game controllers. When this technology showed up in Xbox and Playstation controllers, Immersion stepped up and cried, “Blasphemy!” (or whatever the legal equivalent might be).

Microsoft settled right away, then bought up 10% of Immersion. Sony claimed their technology came from a legitimate purchase from Logitech in 1998, but the jury didn’t believe it. They awarded $82 million to Immersion, which ballooned up another $15 million after the appeal process.

By complete coincidence, Sony announced their new controllers would no longer feature vibration, beginning in 2006. They claimed it interfered with their new motion-sensing technology. Sure it did.

The case was finally resolved on March 1, 2007, and the shareholders of Immersion have not stopped laughing since.

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