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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 3 / 39

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2006:1275

Inoperable Inventions

1277

unlike the Quadro devices, is covered by no less than eight patents.11 The existence of the DKL patents raises a number of questions: What effect have these patents had on DKL’s success in marketing their product? What flaw in the patent-examining process allowed these patents to be issued in the first place? More importantly, can the issuance of such patents be prevented in the future, and at what cost?

The U.S. patent system has endured criticism over the years for a number of perceived failures to protect both the consumer and the industries that rely on patent protection.12 Criticisms include (1) overly broad patent protections,13 (2) grants of patent rights for clearly obvious inventions,14 (3) windfalls to inventors after long application delays (the so-called submarine patents),15 and (4) grants of patents for marginally useful (or even silly) innovations.16 Other criticisms arise from particular technological fields. For example, with respect to the pharmaceutical industry, critics often take issue with the requirement that chemical compounds have some recognized commercial utility before they can be patented. 17

This Comment addresses a criticism that often arises in the scientific community—but which is given scant attention in law reviews—the issuance of patents which have theories of operation that rest on clearly pseudoscientific principles.18 From a legal perspective,

11.

U.S.

Patent

No.

5,748,088

(filed Nov.

27,

1996);

U.S.

Patent

No.

5,907,280 (filed Apr. 28, 1997); U.S. Patent No. 6,011,476 (filed Aug. 25, 1997); U.S. Patent No. 6,078,179 (filed Apr. 24, 1997); U.S. Patent No. 6,411,099 (filed Mar. 29, 2000); U.S. Patent No. 6,496,114 (filed Jan. 21, 1999); U.S. Patent No.

6,674,366 (filed May 4, 1998); U.S. Patent No. 6,686,842 (filed May 4, 1998).

12.

See, e.g., Symposium, Ideas into Action: Implementing Reform of the

Patent System, 19 BERKELEY TECH. L.J. 857 (2004).

13.

See, e.g.,

U.S.

Patent No.

5,960,411

(filed

Sept.

12,

1997)

(Amazon.com’s patent for “one-click” shopping); Elizabeth Jackson, Amazon.com, Inc. v. barnesandnoble.com, Inc.: The Custody Battle Over “1-Click” Shopping: Web Customers Win Control, 10 U. BALT. INTELL. PROP. L.J. 55, 58-59 (2001).

14.

See, e.g., U.S. Patent No. 6,080,436 (filed June 14, 1999) (patenting a

m e t h o d o f r e f r e s h i n g a b r e a d p r o d u c t b y h e a t i n g t h a t i s , m a k i n g t o a s t ) . Most famously, inventor Jerome Lemelson extracted about $1.5 billion in 15.

licensing fees using submarine patents for such everyday items as bar-code readers. See Susan Hansen, Breaking the (Bar) Code, IP L. & BUS., Mar. 2004, at 41, 42.

16.

See, e.g., U.S. Patent No. 6,213,778 (filed Dec. 14, 1999) (describing a

method of creating art prints by dipping a baby’s posterior in paint and transferring the image to paper).

17.

See, e.g., Eric P. Mirabel,

“Practical Utility” Is a Useless Concept, 36

AM. U. L. REV. 811, 812-14 (1987); Phanesh Koneru, To Promote the Progress of Useful Art[icle]s?: An Analysis of the Current Utility Standards of Pharmaceutical

Products and Biotechnological Research Tools, 38 IDEA 625, 648 (1998).

18.

See, e.g., John H. Barton, Reforming the Patent System, 287 SCI. 1933,

1934 (2000); David Voss, ‘New Physics’ Finds a Haven at the Patent Office, 284 SCI.

1252, 1252-54 (1999).

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