Saturday, November 12, 2005

Which Side of the Plastic To Write Upon?

On Wednesday, the Judge in Wham-O v. Sport Dimension issued summary judgement of non-infringement in favor of Sport Dimension. This is unquestionably the right decision, but the fact that this case ever made it to court shows that questionable means of enforcing questionable patents abound in areas far removed from software and business patents. Let me explain:

Wham-O had a patent for a surfing body-board. One of the claims in this patent was for printing graphics on the inside surface of an outer layer of plastic (to protect the graphics from scratches and whatnot).

Sport Dimension developed a body-board with an outer layer of plastic, but instead of printing graphics on the inside surface of the plastic, they simply printed on the material underneath the plastic.

Lawsuits and hilarity ensued. Wham-O claimed that the Doctrine of Equivalents came into play here, and that Sport Dimension was thus violating their patent. The judge, we can all thank, said no, this claim can't be used against Sport Dimension. We got lucky this time, even though both sides had to go through litigation to get there. You can learn more about the Doctrine of Equivalents and why the judge said it didn't apply in this case by following the above link, but that isn't the point of this post.

The point is this: if you believe that the side of the plastic you print on should be something that is given a government-granted monopoly, if you believe that the world would have been a much darker place had Wham-O not patented this 'invention', and if you believe that the benefit of locking this idea up for two decades is worth it because otherwise none of us would have been able to figure out that printing on a surface other than the outside prevents scratches, well, then perhaps you should spend more time reading something like IPBlog where you and your IP-maximalist buddies can sound off in your own vast echo-chamber.

But I'm guessing that most of you don't feel that way, because most of you are reasonable people. And reason shouts against the insanity that is our system of dubious patent grants and our tolerance for abusing the legal system with our patents (both dubious and legit) to stifle fairness, competition, and yes, innovation and progress. If I'm right about you, you'll pledge today to take some action, this very week, to make your voice known. And you'll pledge not to stop there, but to keep pushing until we get the reforms we need. Some ideas you could start with:


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