The Elastic Patent

Primarily, a patent is used to legally block a competitor from replicating an invention.  Patents have other uncommon uses as I’ve described before.  One example was the Scrub Daddy, who used patents to help secure an investment on Shark Tank and become what is now a $40-million-dollar company, which you can read about here.

U.S. Patent No. 9,265,983, Exercise apparatus for assisting in strength exercises, or better known via its commercial name, The Sling Shot, is a resistance band that stretches across the user’s chest as the user is about to do a pressing motion.  The Sling Shot is designed to mitigate a load on the user’s shoulders as the user’s moves out of the fully eccentric position while maintaining proper form.  The Sling Shot is simple in design - the arm cuffs are elastic and the middle connecting portion is relatively inelastic, thereby preventing elbows from flaring out and providing a modicum of assistance in concentric direction.  Its primary use appears to act as a physical therapy aid while helping users increase their pressing motion loads with decreased forced being placed on their shoulders and elbows.  See Figures 3 and 4 from U.S. Patent No. 9,265,983 below which show a fully concentric position and a fully eccentric position, respectively. 

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The inventor is Mark Bell, whose company is Super Training Products LLC.  The website selling the Sling Shot, https://markbellslingshot.com/, has many other products, including hip bands, elbow sleeves, knee sleeves, and other exercise apparel.  It may be that Mark Bell is not aggressively pursuing competitors copying his Sling Shot based on his social media and YouTube posts; so why get a patent?

The patent for the Sling Shot serves a variety of purposes outside of the traditional legal protection.  Similar to the Scrub Daddy patents, it could help Mark Bell secure an investment.  The other benefit of the Sling Shot patent is it provides a form of legitimacy.  The patent demonstrates to the consumer that he was the first to come up with the idea, which may further demonstrate a greater understanding of the problem being solved.  Further, when so many products are purchased online, the patent may give his product a “realness” compared to other products without a patent that a consumer may believe to be cheap and poorly constructed and fake.  Very likely, the patent in combination with his social status are sufficient to differentiate him from the competitors copying his product. 

Furthermore, the Sling Shot patent may function as an umbrella, with Mark Bell’s other lines of products viewed under the same shadow.  Thus, a customer visiting his site and realizing they have no need for the Sling Shot may still be inclined to purchase his hip band or other products, despite his products being more expensive.  Why? Because the patent may elicit a feeling of trustworthiness; Bell researched and developed the Sling Shot and likely took a similar approach with his other products.  Thus, even if his hip band is more expensive or identical to other hip bands, the customer may believe Mark Bell’s hip band is better than other due to his Sling Shot patent.  In this way, Mark Bell may be using the Sling Shot patent as a marketing tool, allowing him to differentiate his Sling Shot and other fitness products from competitors without using the legal protections afforded to him via the patent. 

Skim Milk

Obesity is an epidemic in many countries, including America, resulting from a lack of exercise and poor diet. Commonly, people are happier when they exercise and eat right, not to mention their vitals (BP, HR, etc.) change to more desirable values. This logic applies to household pets as well; dogs are happier and healthier when sufficiently walked and fed appropriately. Therefore, it is safe to assume that livestock, such as cows, would also be happier when provided with a medium for exercise. However, cows are naturally dormant animals that enjoying grazing and relaxing. Commonly, farmers, whether dairy or cattle, arrange drinking water for the cows far away from their food, thereby forcing the cows to walk. However, this requires a large plot of land that could be utilized in other ways.

Large animal veterinarian, Arlan Smith, realized that animal husbandry costs may be reduced by providing a treadmill shaped to accommodate a cow. He claims that a variety of bovine problems may be preempted, such as lame cow syndrome, calving problems, digestive upsets, misplaced abomasum, infertility, and short lifespans.

FIG. 1 from U.S. Patent No. 7,654,229

FIG. 1 from U.S. Patent No. 7,654,229

The patent, US7654229B2, comprises a variety of features that are purportedly non-obvious with relation to human treadmills.  For example, it teaches an identification system coupled to a database of workout durations and frequencies.  It includes a trough, which may hold food or water, to prompt the cow to continue walking on the treadmill.  Most importantly, the treadmill has a plurality of rigid plates, that may fall away from end rollers of the treadmill - the rigid plates may both wear down the hoof, as well as sweep fecal matter away from inner componentry of the treadmill.  The poop may be further swept away from the plates via a flushing system, which injects water at spaces between adjacent plates. 

The concept of the application is quite interesting as animal husbandry becomes a larger issue in the discussion of global warming.  Methane produced from cow flatulence aside, animal husbandry is often knocked for its excessive use of land, which results in deforestation.  With the introduction of the cow treadmill, land use for dairy and other types of farming may be reduced, thereby decreasing an environmental impact of the farm while also decreasing operational costs and increasing cow health. 

Operation space with regard to this concept is open, as the application was abandoned due to nonpayment of maintenance fees. Further improvements may yield interesting IP. One idea includes designing the platform to include an endless track that include a grass-like surface, which may trick the cow into thinking it is still walking the pasture.Additionally, the treadmill may be modified to include arms configured to massage the cow as it strolls on the treadmill.Lastly, to promote socializing between cows, a treadmill may include more than one track so that cows may walk next to one another and discuss their plans for the day.

Bike Washing Machine

Image of the Bike Washing Machine

Image of the Bike Washing Machine

Balance between a patentable idea and market viability can be difficult to navigate.  Market demand may simply not exist for an idea, no matter how novel or ingenious.  On the other hand, simple modifications to well-known ideas can be very lucrative, while narrow in patent scope or not patentable at all.

Enter the bike washing machine, which from its name can be one of two things: a washing machine for bikes (akin to a car wash) or a washing machine for clothes combined with a bike.  The bike washing machine is the latter, and features a drum located where a front wheel of a bike would ordinarily be.  The drum comprises water hook ups for admitting and expelling water.  The patent KR 2011/0003822A, can be found here

Even more interesting, based on the fact that such patents even exist, are the references used during prosecution.  Two patents of interest include a “Combined bodybuilding energy-saving washing machine” (CN106498655A) and a “Bodybuilding bicycle with dewatering drum” (CN104958868A).  Each is somewhat related to the bike washing machine, however, their designs are quite different.

Image of the energy-saving washing machine

Image of the energy-saving washing machine

Image of the bicycle with dewatering drum

Image of the bicycle with dewatering drum

The water hookups and other features associated with the bike washing machine helped it overcome these cited references.  The application was allowed, however, the applicant failed to pay the issue fee.  Good news! Patent space is available in the bike laundry market.  The bike washing machine patent failed to describe any routines, such as reversing a spin direction within the drum, which is common to traditional washing machines, despite a fixed rotational direction of the pedals of the bike.  It also did not address adjusting a spin speed of the drum, which could be done with traditional bike gears.  Other patentable ideas may include coaching in relation to laundry completion.  Many bike trainers include coaching based on terrain, however, these coaching features are not readily translated to a bike washing machine (e.g., “Your clothes are really soiled; bike harder!” or “Don’t give up on your journey to cleaner clothes!”).  There are many patent roads one can travel with the bike washing machine, however, its viability in the marketplace remains to be seen. 

Making Every Cocktail Neat and Perfect

Learning cocktail making, as with many hobbies, has an inherent barrier to novices guarded by vexing terminology. What does it mean to “muddle” something? Is a “dash” the same amount as a “splash?” How can a cocktail be “dry?” Combined with an array of intimidating contraptions and an overwhelming abundance of complex, multistep recipes, it may be tempting to head out to the bar and put home mixology on the rocks.

Somabar® and other companies are seeking to change that. In the age of instant and facile domestic comfort led by smart home technologies, one patentable space remains sparse – the automated home cocktail maker. As can be surmised by anyone who has been to a novelty robot bar, automated cocktail making is known. For example, Smart Bar USA claims to market “the world’s first patented touch-screen bar and automated cocktail dispenser” (see U.S. Patent No. 8,584,900, wherein the inventors recognize “a lack of the ability to provide mixed alcohol drinks” via the beverage dispensing systems in the prior art).

However, Somabar® seeks to push through U.S. Patent Application Publication No. 2016/0039653 by linking the size of the invention to specific applications. The primary argument is based upon similar inventions in the prior art being six feet in height or taller, whereas a housing of the drink vending apparatus of the ‘653 application is “less than two feet in height.” The invention is therefore “small enough to fit on a standard kitchen counter and underneath standard kitchen cabinets,” as supported in the specification.

FIG. 1 below provides one embodiment of the drink vending apparatus of the ‘653 application. Liquor cartridges may be placed on the manifolds 128 to provide ingredients for a mixed drink. A glass may then be placed on dispensing tray 203 to receive the mixed drink as prepared by the apparatus. Tying the invention further to the smart home paradigm are its wireless capabilities; a mobile phone or tablet can operate the apparatus, from which a user can request specific drinks via an associated mobile phone application.

Bloomberg prices the Somabar® at $2000, which may be a little steep for the cocktail-curious. For now, at least, most amateur mixologists will have to suffice with their martinis shaken, not automatically dispensed.

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Lessons from the “Nut Wizard”

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Inventions are often born out of a desire to improve upon current market products. If this is the case with your invention, clearly pointing out prior art that your invention has improvements over is useful information to include in a patent application.

One example of a patent application that includes discussion of prior art is for the “Nut Wizard” (U.S. Pat. No. 6,460,249 B1), a rolling basket with a handle that is used to pick nuts and fruit off of the ground.

The patent application for the “Nut Wizard” does a great job of emphasizing improvements made over other devices in the same space. For example, the “Nut Wizard” application points out how U.S. Pat. Nos. 3,215,293 and 3,604,190 includes axles that run through a basket, which may be difficult and expensive to produce. Then, to clearly contrast this prior art, the “Nut Wizard” application explains features that make it simple and inexpensive to construct.   

nut wizard 2.png

Pointing out disadvantages in prior art and how your invention addresses these disadvantages is a strategy that may improve prosecution efficiency. For example, it is less likely that you will need to re-explain improvements over this prior art through an Office action response.

Learning from the “Nut Wizard”, do not be shy to point out disadvantages with previous approaches. Your patent application is a chance to point out all the great features of your invention and why these features are improvements over other products out there. Getting specific with the prior art that your invention has improvements over not only highlights advantages of your invention but also can make patent prosecution go more smoothly.

ICE, ICE GENIE OR WIZARD OR…?

A previous post described the strategic importance of pursuing patent protection. Therein, the Scrub Daddy served as an excellent example, where Aaron Krause pursued a design patent application during the infancy of his business likely due to money being diverted to the marketing and manufacture of his sponge.  This decision allowed him to secure a $200,000 offer on Shark Tank and grow his business into a multi-million dollar company. 

            Herein, we provide an example of an ice maker which goes by a variety of names, including Ice Genie and Ice Wizard.  While both names are magical, the landscape in which they are selling these ice makers is not.  Searching Ice Genie in Amazon reveals many similar looking products providing the same features.  Not to mention, Ice Genie and Ice Wizard do not appear to be owned by the same company, while the product offered is the same. 

            The Ice Genie is a clever design that provides a double barreled ice maker forming ice between walls of the two barrels.  The walls have features that allow the water to freeze in half-dome shapes.  The Ice Genie touts that it can replace up to 12 traditional ice cube trays.  While this is in number and not in volume, the Ice Genie does provide other features.  The double barrel design further serves as a drink holder, allowing the ice formed therein to cool a drink. 

            While differences between the Ice Genie and the Scrub Daddy may be due to brand recognition as a result of marketing, the origin of these differences may likely be a result of patent protection.  Scrub Daddy’s patent likely deterred competitors enough to prevent copycats and allowed the company to grow and build brand recognition freely.  This is especially evident when searching for Scrub Daddy on Amazon (you will only see Scrub Daddy products on the first page).  Unfortunately for the Ice Genie, it appears as though they did not pursue patent protection and thus there were no consequences for mimicking their design.  Even if someone knew about the Ice Genie, they wouldn’t know which product to select after searching on Amazon.  Ice Genie is another example of why it can be extremely beneficial for a company, even when money is tight, to file patent applications early to afford the company protection of their product while marketing and growing their brand. 

The Importance of Pursuing Patents, even when money is tight

            Household staples are often overlooked as materials which can be improved upon.  Consumers typically use their dish racks, knife blocks, mops, and dish rags without further consideration.  However, Aaron Krause, founder of Scrub Daddy, created a multi-million dollar company by hand-washing his dishes and adding a smile to the sponge.

            Scrub Daddy has burgeoned into a wildly successful company, which may be in large part to Krause’s patent pursuits.  His first patent pursuit included a design patent (USD671515S1) filed in 2007, five years before he appeared on Shark Tank.  The benefits of the design patent include its lower cost compared to a utility patent but potentially shorter shelf-life (15 years).  In hindsight, this was a brilliant way for Krause to affordably protect the Scrub Daddy while suiting potential investors.  Krause received a $200,000 offer on Shark Tank, which is a great rate of return when compared to the cost of a design patent.  The filing fee for Krause was likely $330 (not including attorney fees and drawing fees, due to his micro-entity status).

            Since 2007, Krause has staggered his patent filings, affording him extended patent protection while minimizing his patent costs.  In total, Krause has filed two utility patents (U.S. 2014/0075699 which was a continuation-in-part of U.S. 2016/0213221 (pending)), both filed in 2012, and three design patents, the most recent filed in 2016 (USD801081S1).  Interestingly, U.S. 2014/0075699 was abandoned and U.S. 2016/0213221 includes only one claim, which has been rejected in the most current Office action.  Nonetheless, the Scrub Daddy and its affiliated products are potentially covered until 2031. 

            Regardless of Scrub Daddy’s utility patent issues, which may have been avoided had focus been shifted to a size of the eyes and smile, along with the ridges or “hair” of the sponge, Krause has otherwise played a beautiful patent game and is a great example for other new entrepreneurs.  With money likely being tight and with a focus on expanding your business as quickly as possible, design patents can be a cost-effective way to protect your product while legitimizing your company to potential investors. 

Surprising Uses for Oobleck

Oobleck is a common name for a non-Newtonian fluid comprising cornstarch and water. Named after a substance humorously described in Dr. Seuss’s classic children’s story, Bartholomew and the Ooblek, the cornstarch and water concoction is frequently used in children’s science classes as a fun way to learn about fluid mechanics. You may have fond memories, yourself, of playing with oobleck as a youth. Oobleck behaves as a fluid when touched gently, but becomes hard as a solid when hit with great velocity. For example, a person could run across a swimming pool of oobleck without getting their feet wet. However, if a person stood still on the oobleck, then they would slowly sink.

Because oobleck is a children’s plaything and because of its simple recipe (cornstarch and water), one may be surprised to learn that inventors have attempted to patent serious industrial uses for the material. As an example, one current patent application, US 2015/0016885 (now abandoned), is for a system of filling potholes with bags non-Newtonian fluids, such as oobleck. The patent application notes that permanently fixing potholes must often be delayed due to economic and seasonal reasons. Thus, the application provides a system of temporarily fixing potholes by filling them with bags of oobleck (or other non-Newtonian fluids). When the bag is placed in the pothole, the oobleck has time to act like a fluid and fill the hole. However, when a car or truck runs over it, the oobleck acts as a solid, preventing damage to the vehicle. The oobleck is easily removed when necessary, and is environmentally benign. The application suggests a mixture of two cups of water to 1 pound of cornstarch, but notes that other concentrations are suitable “as will be appreciated by one of ordinary skill in the art.”

One oobleck-using invention for which Honda Motor Company received a patent in 2011 is US Patent #7,959,201, which discloses a gear damper comprising oobleck. Gear dampers are often used in automobile interior applications to control the moving speed of components such as pocket lids, trays, and glove boxes. The dampers use a fluid to slow the speed at which a particular gear can move. The patent addresses a situation in which a car is involved in a crash with high g-force, wherein geared components may open themselves due to the forces present during the crash. Using a fluid such as oobleck ensures that the devices open properly when used normally, but resist opening when a great force is involved. After all, it is bad enough being in an accident; the last thing you need is to have your ashtray or glove compartment open and spill all over the place. And does this invention really use oobleck? Yes, claim 8 of the patent states “The gear damper of claim 1 wherein the damper fluid comprises: cornstarch; and, water.”

 Oobleck even has military applications. In 2013, Lockheed Martin was issued US Patent 8,448,559 for a “Vehicle Hull including Apparatus for Inhibiting Effects of an Explosive Blast.” Noting “modern combat theaters require new operational doctrines to counter unsymmetrical and unpredictable threats,” Lockheed has developed a vehicle hull technology comprising a non-Newtonian fluid that is lightweight, low-cost, and can be retrofitted to existing vehicles, providing them means for inhibiting effects of explosive blasts. Claim 21 of the patent states “The vehicle hull of claim 5, wherein the shear thickening fluid comprises: one of a dispersion of cornstarch in water, a dispersion of a clay in water, a dispersion of titanium dioxide in water, and a dispersion of silica in water.”

However, in my opinion, the best invention using a non-Newtonian fluid may be US Patent #7,942,603, for a “Speed Sensitive Traffic Control Device.” This invention is a speed bump consisting of a shell body containing a non-Newtonian fluid. When a car is moving at the correct speed, the speed bump squashes and allows the car to pass without obstruction. However, when a car is moving too fast, the non-Newtonian fluid acts as a solid and hinders the car’s movement. Although the patent does not describe oobleck per se as the fluid.  Rather it  suggests a mix of silica and polyethylene glycol, and it is certainly a clever enough use of a non-Newtonian fluid to warrant mention.

Now, the next question: Who is going to be the first to patent an industrial use for flubber?

An Industrious Solution To An Industrial Problem

The term “heavy industry” conjures images such as construction equipment and materials for building various structures such as bridges, hotels, skyscrapers, etc.  Thus, of course one aspect of intellectual property related to heavy industry encompasses the development of, and improvements upon, various types of equipment related to the construction of such structures.  However, another aspect to the heavy industry market includes upkeep of such structures, once they are constructed. Toward that end, there is currently an upswing in activity in terms of obtaining patent protection for “smart” buildings, homes, bridges, etc., which may rely on network-connected sensors capable of providing real-time data pertaining to various aspects of maintenance of large structures.  However, such solutions are inherently complex, have issues related to divided infringement, and the IP space for such solutions is growing increasingly crowded.

            In this age of technological advancement, it is thus still worthwhile to think about problems from another, perhaps simpler, perspective.  To illustrate the point, consider a recently allowed patent (US 8910322 B2) for a product called the DrainWig (FIG. 1). 

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The DrainWig, simply put, is a non-complicated device that is inserted into a drain, which serves to prevent clogs.  More specifically, a flexible chain 320 is coupled to a cap 310, which rests on a drain cover 372.  In some examples, the chain may include additional interactive members (322, 324, 326).  The chain is placed in the drain, where, during use, hair gathers on the chain and/or interactive members.  To clean the drain, the chain is simply pulled out and the chain may then be cleaned and reused, or discarded.

            The DrainWig was invented by a couple with five girls with long hair, thus bringing to mind the phrase “necessity is the mother of invention”.  However, the implications of such an invention are wider than just preventing arguments over who cleans the drain in particular households.  Consider for example, the hotel industry, where such an invention may save countless amounts of money in terms of upkeep, and may avoid the well-known drawbacks of chemical de-clogging systems.  Thus, even in this current age of technological advancement, the DrainWig serves to remind inventors that sometimes a simple solution can prove very effective. 

Unplugging the Solid-Body Guitar

Guitars are one of the most commonly used instruments in modern music, evolving from ancient stringed instruments.  The basic principle of how these instruments work has remained the same: as guitar strings vibrate, they produce sound.  An acoustic guitar amplifies the sound of the strings via a soundboard (the top surface of the acoustic guitar body) and a sound box (a hollow cavity within the acoustic guitar body).  The first electric guitar was patented in 1937 (US 2,089,171), which arguably transformed not only the guitar, but music as we know it.  Electric guitars use a pickup to convert the string vibrations into electrical signals, which can be amplified and projected over a speaker.  Because electricity is used to amplify the sound of the electric guitar (and not the guitar itself), modern electric guitars typically lack a soundboard and a sound box, allowing them to have a thin, solid body, which makes them more comfortable to play.

 

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For many years, if you wanted to play a solid-body guitar, your only choice was to play electrically, which meant purchasing a guitar amplifier and plugging in whenever and wherever you wanted to play.  In a sense, solid-body guitars were limited by the very technology that made them possible: electricity. 

Fender Musical Instruments Corporation identified this limitation and engineered a solid-body guitar that can be played without electronic amplification.  Fender’s solid-body acoustic guitar includes a small sound box and a soundboard.  However, unlike a traditional acoustic guitar, the body is formed of a single solid material instead of multiple thin sheets, similar to a traditional solid-body electric guitar.  Additionally, unlike traditional acoustic guitars, the body itself does not define the soundboard.  Instead, the soundboard is a separate piece attached to the solid body.  These distinctions enabled Fender to patent its solid-body acoustic guitar (US 7,151,210). 

The soundboard itself is the key to the instrument and is so unique that its construction has its own patent (US 5,333,527).  Whereas acoustic guitars traditionally have a wooden soundboard, Fender’s solid-body acoustic guitar has a graphite epoxy composite soundboard, which can be made much thinner than a wooden soundboard while maintaining desired acoustic properties.  The thinness of the graphite epoxy composite soundboard allows the volume of the sound box to be maximized (increasing the loudness of the sound produced) while the overall size of the guitar is minimized (increasing comfortability).

These Fender patents show that advances in materials, not just advances in electronics, have the potential to evolve the modern guitar as we know it and overcome limitations of the instrument.  Because these patents give Fender exclusive rights to produce its solid-body acoustic guitar and graphite epoxy composite soundboard, other guitar manufacturers may be encouraged to evolve both acoustic and electric guitars in other ways.  These patents also highlight how innovation can come from figuring out how to combine desirable properties that appear to be mutually exclusive at first glance (in this example, a solid-body guitar and acoustic sound production). Often, If you are able to achieve benefits that originally seemed mutually exclusive, that is a strong sign that you may have just made a significant invention.