40

An episode of Last Week Tonight claims that the US Patent Office once patented a stick:

screenshot of John Oliver with a slide showing a US patent for a stick

Okay, but we shouldn't necessarily trust the US Patent Office as an arbiter of good judgement. It's the same place that issued patents for an umbrella for your beer, a tricycle with a lawnmower attached to it and... a stick. That's it. Just a stick, for animals to play with. Someone in the patent office saw that and said "we've never seen a stick before... approved."

It seems to be referring to this patent. It seems legit, yet I find it hard to believe Oliver's simplified version of events. I'm betting there is some nuance to this story that's been omitted.

Question: Did the US Patent Office issue a patent for a stick?

10
  • 21
    I'm surprised he didn't mention the patent for the delivery of a baby via centrifugal force - that's normally the goto example of the existence of patents not meaning much. Commented Feb 20, 2023 at 12:28
  • 15
    Except… it's not a stick. It's an "article of manufacture" in the shape of a stick. They didn't just yank something off a tree and write a description of it. I'm not really sure what nuance you're looking for.
    – Laurel
    Commented Feb 20, 2023 at 12:56
  • 6
    Back when I was producing to-be-patented designs, I saw a (modest) number of patents that were kind of silly. I suspect some were basically classroom exercises. A design need not "make sense" from a commercial standpoint, it only needs to checkmark the necessary properties for a patent. Commented Feb 20, 2023 at 13:54
  • 6
    As funny as this patent is, it's worth noting that patents aren't just to identify an invention, they're also used to exclude the ability of others to patent, develop, or use something similar. Having worked to apply for and successfully received a patent myself, the goal is to identify your invention in the broadest terms possible. It isn't surprising that someone tried to obtain this patent in the way they did - what's surprising is that it didn't occur 50, 75, or 100 years earlier.
    – JBH
    Commented Feb 21, 2023 at 2:43
  • 5
    @IanKemp Patents in general are not a nonsensical idea. The basic idea is to make stealing someone else's brilliant idea a bad thing to do (and subject to lawsuits), just as stealing someone else's writing or art is a bad thing to do (and also subject to lawsuits). Patent protection lasts a much shorter length of time than does copyright protection. Commented Feb 21, 2023 at 16:44

4 Answers 4

71

To add to the two other good answers, the patent wasn't just for "a stick", it was for a stick shaped dog chew toy that acted like a real stick. This reads as a patent for a commercial product that acts and looks like a stick, not a stick you'd pick up off the ground under a tree.

If you read through the patent, the claims talk about multiple materials (like plastic and rubber), for it to float, to be easy to carry and pick up, for it to have various coloring (fluorescent or camouflage), have scents added to it, and more. The patent also specifically states it's classification as "Chewable toys, e.g. for dental care of pets". This category has over 5000 patent listings.

Also, the USPTO generally doesn't care what people are patenting, as long as it can be described under their rules for patent applications. They don't exist to say what products are good, able to make a profit, or anything like that.

If you look at what Last Week Tonight is, it's satire, so definitely take what they say with a massive grain of salt.

Edit:

There seems to be a lot of opinions about this situation and while some are relevant, some are not, and even the relevant ones aren't necessarily correct. Let me explain.

The question is about whether the USPTO patented a stick. It didn't, it patented something that resembles a stick. Arguing that a stick could invalidate the patent ignores that many patented things resemble things in nature, but as they are man-made as a product, they are subject to being patentable. The patent isn't issued for the product, but rather for the idea or the process of making the product.

The fact that the patent was later revoked/invalidated has no relevance on whether they originally granted the patent. There are literally millions of patents and billions or trillions of examples of "prior art" that a patent clerk has to go through the determine if an item is patentable. In 1999, when this was patent was granted, they didn't have the internet as we know it today. (It existed, but it wasn't as comprehensive and easy to use as it is now. It was still mostly relegated to the military, big business, and computer nerds.) They couldn't just "Google it" and find something else similar. Even within the USPTO offices, they didn't have digital search capabilities at this time. They didn't have that until 2001. It's pretty easy to see how other, similar patents could have been left undiscovered. The 1980's and 90's were a time where pet toys were being reinvented (pardon the pun), and so there were a lot of things going on.

Also, the patent doesn't say why it was revoked/invalidated, so we don't know why it was. A patent can be partially invalidated, so a single claim being invalid doesn't mean the whole patent is invalid. Also, infringement is different from the patent being invalid.

Then there's the "point" about it looking like something else, specifically a stick. There are 2 type of patents, a utility patent and a design patent.

A utility patent is about the process to make the item and looks are only a part of it, and it looking vaguely like something else doesn't automatically invalidate the patent. If it did, the vast majority of patents would never have been issued. Anything from toys that looks like non-toys (from guns to cars to people to appliances to electronic items and more), guns and their accessories wouldn't pass because of previous guns and accessories they are similar to, industrial automation that uses similar parts, desks and chairs, and so many other things couldn't be patentable if we relied solely on looks for a utility patent.

A design patent, on the other hand, is where the looks do matter. You have to have a sufficiently distinct looking design for something to be covered under one of these patents. Changing color, a minor change in bevel angle, materials, and a whole list of other things aren't enough to patent something. Trying to patent the look of a stick surely wouldn't happen, which is why the patent in contention isn't a design patent and includes the process on how to make it.

And the choice of material alone isn't enough to invalidate a patent. "A literal stick that floats would seem to violate claim 1" (from the comments below) is totally incorrect. If that were true, a boat, a 2x4, a crumpled piece of paper, or 1000 other things could invalidate that patent as well as likely thousands of other patents.

"It might be be considered satire or comedy but that doesn't mean they don't take their news seriously" (also from the comments below), this is why I suggested the grain/block of salt. Because they are satire, you need to figure out what they are being satirical about and what they aren't, and most satire can be pretty difficult to determine what's what because it's satire. You also have to understand that they are going to oversimplify something just for the sake of satire. If they truly believed that the USPTO patented a stick, they obviously didn't read or understand the patent.

1
  • 1
    Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Skeptics Meta, or in Skeptics Chat. Comments continuing discussion may be removed.
    – Oddthinking
    Commented Mar 6, 2023 at 14:25
44

The patent office did issue the patent, but later determined that none of the claims were patentable and therefore cancelled all the claims.

From the "Legal Events" section:

Date Code Title Description
2002-07-23 CO Commissioner ordered reexamination Free format text: 20020606
2005-06-03 FPAY Fee payment Year of fee payment: 4
2006-07-04 FPB1 Reexamination decision cancelled all claims

The PDF version of the page says:

EX PARTE REEXAMINATION CERTIFICATE ISSUED UNDER 35 U.S.C. 307

THE PATENT IS HEREBY AMENDED AS INDICATED BELOW.

AS A RESULT OF REEXAMINATION, IT HAS BEEN DETERMINED THAT:

Claims 1–20 are cancelled.

The proceedings of the reexamination are available on the USPTO Patent Center page.

9
  • 7
    @DanRomik Reexamination was requested in June 2002, 3 months after the patent issued, and the claims were all canceled due to the reexamination in 2006. patentimages.storage.googleapis.com/7d/c2/a6/10a1fcd1ee5ca8/… (see pages 8 and 9).
    – DavePhD
    Commented Feb 20, 2023 at 19:38
  • 12
    To be crystal clear, yes, the Patent Office issued such a patent, but later rejected each and every claim. The patent still exists but the claims do not. There is no violation for someone who picks up a stick off the ground and tosses it for that person's dog to fetch because the patent has no claims. Cancelling claims is the means by which the Patent Office rejects patents that probably never should have been issued in the first place. Commented Feb 20, 2023 at 21:09
  • 7
    There was also the patent for swinging on a swing (in effect for 13 months before being cancelled), and in software, the patent for the XOR cursor. Commented Feb 20, 2023 at 23:29
  • 7
    If you read the rejection, the reasons included for the Claim 1 someone previously patenting a vine cutting that was a similar shape, and another a toy that also has a similar shape. Both patents were broader than that, but you cannot patent a sub-set of someone else's. Then, the sub-claims become obvious to one skilled in the art as simple refinement, so every other claim falls too.
    – Ken Y-N
    Commented Feb 21, 2023 at 6:00
  • 3
    The XOR cursor was absolutely clever. Not obvious before you saw it.
    – gnasher729
    Commented Feb 21, 2023 at 13:08
14

When you look at a patent you should check the claims, each claim represent an exclusive for the patent grantee. You should also take into account that a patent should not be something obvious to a person skilled in the field.

In the patent linked if you check the first claim it describes an animal toy with a shape (protrusion) designed to make it easy to pick from the ground and made with a material that will make it float in the water. So even if the patent say that the toy will have the shape of a stick it does not exactly claim ownership of the stick shape, it must have all the described feature to match the claim.

On the other hand many of the common toys for dogs in the shape of a bone have the same features. The decision of the patent office to consider this patent non-obvious is debatable. So I would say the the claim might be oversimplified, but it is true. Or at least partly true.

15
  • 1
    A patent for a way to make a stick? Seems in the end it is still a patent around a stick.
    – Joe W
    Commented Feb 20, 2023 at 16:24
  • 9
    Again, not just a stick--a stick-like industrial product with a particular shape and particular properties, for a specific purpose (it is assumed that the specific purpose behind the original wooden sticks was to hold up leaves, not entertain pets). Commented Feb 20, 2023 at 21:03
  • 4
    @CristobolPolychronopolis A stick like product is still a stick in the end.
    – Joe W
    Commented Feb 20, 2023 at 21:16
  • 3
    @JoeW Particularly so when the principal way of manufacturing such a stick-like product is to grow it on a tree. All 20 claims on the patent were later cancelled; see DavePhD's answer. Commented Feb 20, 2023 at 21:18
  • 4
    @CristobolPolychronopolis People have been tossing sticks for dogs to fetch since people domesticated dogs. People have been manufacturing stick-like objects to toss for dogs to fetch for a long, long time. This patent should have failed the non-obvious test, but it didn't. Cancelling all of the claims is the primary mechanism the Patent Office uses to reject, after the fact, patents that should never have been issued in the first place. No valid claims means no lawsuits are possible. Commented Feb 20, 2023 at 22:06
0

In my experience, in practice, patents are not only there to protect the idea of the inventor. This may have been the original idea of patents, but from big companies' perspective, patents have different uses as well. Some examples:

  • You keep a lot of them in the drawer, as some sort of insurance. If another company sues you for infringement of one of their patents, you can start looking if there isn't something where they infringed one of your patents as well. This way chances are higher to reach a favorable settlement / litigation. (real world case: Apple vs Samsung https://en.wikipedia.org/wiki/Apple_Inc._v._Samsung_Electronics_Co.)

  • Patenting something that is basically no use for you, but likely essential for a competitor in the foreseeable future, hence effectively hindering their business and (relatively) strengthening your own market position. This is especially useful if there are only few large competitors, and the technology lines of the competition are somewhat known

  • using patents as means of own patent research: by applying for a patent, you get the feedback if that idea is used already and you can avoid to accidentally infringe patents of someone else. Otherwise you need to constantly browse (new) patents and double check that you're not infringing anything. Sure, if you're already using technology for a while which is newly patented by someone else, then you can always claim that the patent has been granted wrongly & show your prior art, but those can still be costly lawsuits

  • documentation of prior art: if your patent application gets rejected for lack of novelty / existing prior art, then you can go on producing and be sure that no one else should be able to patent your product and get you in trouble

  • lastly: patent trolling

The dog stick patent theoretically could be a case of tried documentation as a defense against trolling: "lets try to patent it and have at least the documentation that it's not patent worthy, so no one will be able to to use that against us", and then negligence on the side of the patent office for granting it. That would be quite a constructed case though, and the answer to the question is still "yes, the patent was granted"

1
  • 2
    Welcome to Skeptics SE. FYI, about 30 years ago, I was working at Microsoft's R&D division in Redmond on a US patent search & display system. While providing some background information to us, our manager mentioned that, for discoveries that IBM didn't think were worthwhile to patent, they instead often published them in their IBM Systems Journal instead. This was to help avoid any individuals or other companies patenting these ideas instead by making them be prior art. Commented Feb 23, 2023 at 0:55

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .