12:01 Tuesday

Care to Wager?

I am currently attending the AIPLA Mid-Winter Institute in Las Vegas, in honor of which I present the following graph:

I'm going to see if the sports book here at Caesar's will list a prop bet of Gambling Patents vs. Golf Patents to issue in 2012. Based on early results -- Gambling is leading, 52-32 after four weeks -- this could be an interesting race.

I hear they are also setting an over-under for the number of posts to 12:01 Tuesday this year. Hmm...

Sign of the Times: Topps' Method of Trading Baseball Cards

The small pharmacy a mile from my childhood house was a frequent summer bicycle destination for me growing up. That's where my friends and I would go to buy packs and packs of Topps' baseball cards. I still remember opening a wrapper in 1978 to find a Pete Rose--while he was in the middle of his 44 game hitting streak. I hear that card in mint condition might fetch 20 dollars. (Mine--now bent and missing corners--maybe gets a buck.)

So it was nice to see a few weeks ago that Topps obtained its first utility patent in almost seven years (only its sixth utility patent in 30 years). Moreover, this is Topps' first patent that has nothing to do with chewing gum or candy -- it's...get this...a business method patent:

U.S. Patent No. 7,797,194 Method and apparatus for offering for sale collectibles on primary and secondary markets Assignee: The Topps Company, Inc. Issued: September 14, 2010 1. A method of facilitating an issuer of collectibles to manage an offering of collectibles for sale, each of the collectibles having a predetermined condition, said method comprising the steps of: a) initially offering for sale the collectibles to potential purchasers for a period of time set by the issuer; b) receiving orders from the ordering potential purchasers; c) allocating the offered collectibles among selected of the ordering potential purchasers; d) facilitating steps a), b) and c) by a programmed computer; and e) maintaining the condition of the collectibles during steps a), b) and c), whereby the allocated collectibles are of the predetermined condition and the issuer may guarantee the condition of the allocated collectibles, wherein step b) offers an initial offering of collectibles, and there is further included the step of offering for sale selected of the allocated collectibles on a secondary market at the direction of the purchasers of the allocated collectibles.

Commentary: Great. I suppose this means that my kids may not be trading actual baseball cards: instead, they'll be trading futures in baseball cards. Then again, if "personal seat licenses" are now the norm for ticket holders, then why not introduce children to similar concepts early on, right? At least it gets them to think of these cards as the investments they really are, rather than just things to put in your bike spokes so they will make cool ratchety noises. (Sorry, Pete.)

Of course, there's one immediate shortcoming, in my opinion. The patent talks about an "IPO" for a card ("Initial Player Offering") and buying multiple cards for players expected to increase in value (e.g., you may want to buy many Derek Jeter cards "if you believe that Derek Jeter will become the best shortstop of all time," says the patent). That's a great tool to teach kids about buying and holding stocks, but what about selling short? There's apparently nothing in Topp's system that allows me to sell you the Stephen Strasburg card I don't have.

No formal drawings. Even the figures look like they were drawn by 11-year olds.

Bilski. Does this even need mentioning? Actually, the Examiner did reject several claims for failing machine-or-transformation, but other claims somehow survived. Given the recent PTO's recent pronouncements on interpreting KSR, however, I'd think that step d) here might not overcome an obviousness rejection.

Seven Appeal Briefs, No BPAI Decision. The claims in Topps' patent application were given their first final rejection in 2001. But as hard as Topps tried to appeal those rejections, it just couldn't make it up to the Board. The first two attempts resulted in the examiner reopening prosecution with new grounds of rejection. Then there were two defective briefs. Then a substitute brief kicked by the Board because it was not considered by the Examiner. Then another defective brief. Then another brief that reopened prosecution with a new rejection -- which was overcome, resulting in allowance. I suspect the Examiner was simply worn out by this point. Or Topps' counsel takes lessons from the Swamp King.

Filed five months too early? Topps' application was filed in January 2000. Unfortunately, Patent Term Adjustment only is allowed for applications filed after May 29, 2000. With over ten years from application to issuance, that would have been over seven years of "B" delay, alone (assuming there was no applicant delay--you can check that for yourself). But here is is the real travesty of all those failed appeal attempts: under the older Patent Term Extension--which applied to this application--had Topps received a favorable appeal decision from the BPAI, then it would have received extra term dating back to the Notice of Appeal. But without any decision on the merits by the Board (even though the Examiner reconsidered his rejections several times), the term is a flat 20 years from filing.

Adding even more insult to injury, Topps had successfully petitioned to make the application special, resulting in an accelerated examination. Despite, these efforts, in hindsight Topps would have been better off dropping this app in favor of a continuation after the first final rejection in October 2001.

Derivatives. Anyone care to create an options exchange for Topps?

UPDATE 10/20/2010: I'm informed that Topps actually has a commercial service based on the teachings of this patent, called etopps.

Stanley

Though I'm a lifelong fan of the Detroit Red Wings, I'm sure I will get some chills looking down and seeing the Stanley Cup parade past my office building in about an hour. In its honor, here are two design patents inspired by the Grail. Unsurprisingly, both relate to drinking.  Bottoms up!

D461,367 "Drinking Mug"

 
D434,313 "Stanley Cup Shaped Can" 

Territorial Prosecution

To help in my 7-year old son's quest to collect all the state quarters, each day I ritually place a dollar bill in the vending machine for a diet coke and see what change I get.  Call it my mid-morning excitement.  Just as we were in the home stretch a couple months ago, needing only an Idaho, I looked at my change and saw "Puerto Rico".  Apparently Congress sneaked a new law past me in late 2007 to release six new coins honoring D.C. and the five territories. [Trivia Q #1: can you name all five?  No peeking.]  And now I see there's another batch on the way honoring our National Parks.

I can personally attest that these quarter programs succeed at promoting learning in both kids and adults.  For example, my children have now played all the educational games on the U.S. Mint website (I haven't shown them the similar games on the PTO site).  And I've added two tasks to my bucket list: a) visit all the territories; and b) file a (legitimate) patent suit in the District Court for the U.S. Northern Mariana Islands, where LR 83.3 reminds you that shoes are required attire.  (Guam has the same rule.  I'm aware of only one patent case from Guam, Nanya Tech v. Fujitsu; it was transferred to N.D. Cal.)  And you thought Marshall, Texas was an inconvenient forum… try booking a trip to Saipan.  [Trivia Q #2: what's the only territory that does not have its own U.S. District Court?].  The quarter programs also raise a ridiculous amount of money (several billion dollars) for the government through seigniorage.

Of course, I turned to the patent questions.  A few queries at uspto.gov yielded the following results (current as of 12/31/09):

 No huge surprises.  But a few notes:

• Are you ready for some innovation?  The only two American Samoan patents issued in 1984 and 1997.  Evidently, in the last fifteen years there has been a lot more development of Samoan NFL talent than technology.  (Or soccer skills: the AS team has lost 12 World Cup qualifying matches by a combined score of 129-2). [And American Samoa is the answer to Trivia Q #2].

• Database errors:  Searching for these results in the PTO databases requires looking at both the state ("is/" or "as/") and country ("icn/" and "acn/"), since these fields are sometimes miscoded.  Also, there are typos: Reston is in VA, not VI.  I tried to account for these errors when I saw them.

• Disputed ownership:  The most recent utility patent to issue to a territorial inventor outside PR or DC was U.S. Patent No. 7,624,483, for a "Multi-roller snap ring" used with commercial fishing nets.  The file history reveals a classic ownership dispute, where the purported assignee successfully petitioned to prosecute the application without the inventors' declarations.  The inventors then put several letters in the file pleading their case, including an allegation of forgery in the invention assignment obligation and consulting agreement.  Don't expect this one to be litigated soon.  What's not clear is whether the Examiner could have (should have?)considered these to be "Conflicting 37 CFR 3.73(b) Statements", per MPEP 324.X: 

If, however, the ownership established as controlling is contested on the record by another party who has submitted a conflicting 37 CFR 3.73(b) statement, then the application or other proceeding shall be forwarded by the Office official in charge of the application or other proceeding to the Office of Patent Legal Administration for resolution of the ownership question.

• Under-served, warm weather markets?  Anybody want to open a patent shop in Guam?  Seeing that Chicago is about to be sacked with a foot of snow, it's tempting… 

97 Days

In the quickest patent to issue so far this year (by my calculation), Intermune, Inc. has been granted U.S. Patent No. 7,566,729 for "Modifying pirfenidone treatment for patients with atypical liver function". The claims appear to cover particular dosing method of administering pirfenidone to treat a patient with idiopathic pulmonary fibrosis.  Just under 100 days from filing (April 22, 2009) to issuance (July 28, 2009). That's Accelerated Examination in action.

A runner-up, at just over 100 days, goes to Perfect Pushup.  Yes, that Perfect Pushup, whose commercials you've certainly seen if you have ever watched ESPN for more than a few minutes.  It seems that one of the inventors is over 65, and the company wisely has filed Petitions to Make Special to jump to the front of the line.  Their fourth utility patent, U.S. Patent No. 7,566,292 issued today for a Handle Assembly for Use With an Exercise Bar. All of their utility patents appear to have had quick prosecutions: their longest filing-to-issuance has been 15 months, and the average is about 9.5.

Patent Unearths Mascot Mystery

One of the patents that came up in my search for last week’s baseball post has quite an interesting story, it turns out…

The only patent that mentions the Washington Nationals is U.S. Patent No. D562,530, “Mascot Suit”:

Look familiar to anyone?  It didn’t to me, either.

The Nationals are mentioned because there is an article about their mascot, Screech, which the Examiner found to be a pertinent reference.  Frankly, I don’t see the resemblance.  There’s also sister design patent, D562,531 (strangely not on GooglePatents), for which Screech apparently wasn’t pertinent. 

But that assignee certainly sounded odd, if not vaguely familiar: Trans-Marine Management Corp. of Tampa. They don’t appear to have a web page, but it’s easy to see that the company has very politically active employees, has a Cessna registered in its name, and—a ha!—is (or was) owned by George Steinbrenner.  Yep, the address is even One Steinbrenner Drive.  In fact, it was Trans-Marine that once signed Tommy John to a 20-year contract as a bonus to his Yankees deal.  (Rumor has it that George Costanza was also moonlighting there while serving as the Assistant to the Traveling Secretary.)

But why would The Boss want a mascot?  After all, everybody knows the Yankees are just one of four MLB teams that don’t have a mascot, as beautifully illustrated the other day by the folks at GOOD.

So maybe it is for the new Tampa high school named in George’s honor.  That must be it.  They were looking for a mascot recently.  But this guy certainly isn’t a “Warrior”.

It couldn’t be a Yankees mascot, could it? And if the traditional, no-names-on-jerseys Yankees were going to have a mascot, would it really be this?

Just a little more Googling and there it is: a reference and picture of this “Yankees mascot” at a recent charity event.  In pinstripes.  Oh my.

The story gets better.  The inventor, Felix Lopez, is Senior VP of the Yankees.  And he’s Steinbrenner’s son-in-law.  In other words, the 26-time World Series champions, who will pay hundreds of millions of dollars for top talent on the field, won’t hire the best graphics designers in the land to come up with an endearing entertainer to keep fans happy in their overpriced seats as they watch their team struggle to make the playoffs.  For that, they turn to family.

Yeah, this mascot is kind of cute.  But he’s no San Diego Chicken or Phillie Phanatic.  For what the Yanks paid, I'd think they'd have done better getting Dancin’ Homer to do the Baby Elephant Walk on the jumbotron.

Joe Carter's "Tack Tube" Patent

Although I cringe whenever a TV ad runs for one of those “invention submission” companies, in doing my recent baseball search I had an image of a sure-fire winner of a commercial: 

SCENE: 1993 World Series, Game 6.  Blue Jays down by two runs in bottom of the ninth, two men on base.  Joe Carter, the RBI machine for Toronto, smacks a 2-2 pitch from Mitch Williams into the seats, bringing Canada its second straight world championship.  The jubilant Carter is dancing around the bases in hysteria…

VOICEOVER:  Joe Carter – You’ve just hit a home run to win the World Series.  Are you going to Disneyworld?

CARTER: No, I’m going to file a patent application!

That’s right, folks.  Joe Carter, a member of the Canadian Baseball Hall of Fame (and some would say a borderline candidate for Cooperstown), filed an application in 1994 for what later issued as U.S. Patent No. 5,492,425: “Applicator for grip-enhancing substances”.   (And yes, Carter was drafted by the Cubs, who followed their Brockian tradition of trading away future stars…) 

The specification reads well.  In particular, the background goes into a nice history of Rule 1.10(b) from 1872 through George Brett’s 1983 pine tar incident, and also describes the messy process by which players would apply the substance to their bats.

Carter thought there was a better way.  As reported by the trade publication, Rubber World, in October 2004: 

Major league baseball player Joe Carter of the Toronto Blue Jays teamed up with polymer researchers from The University of Akron to create a new product that gives baseball and softball players a better grip while batting. Made entirely of polymers, Tack Tube is a foam rubber shell coated internally with a tacky polymer which is applied to the handle of aluminum or wood bats by twisting the unit from side to side. It is said to give players a better grip that is an alternative to the pine tar traditionally used. The polymer product, for which patent coverage has been sought, was unveiled by Carter during a press conference at UA's College of Polymer Science and Polymer Engineering. Tack Tube will be marketed by Carter's Edmond, OK-based Joe Carter Enterprises.

Apparently those Akron polymer press conferences weren't hitting the mainstream media back in 1994, since this is about all you'll find on "the Google."  But another trade magazine, Paper, Film & Foil Converter, had an in-depth piece on Carter’s invention in December 1995.  As they describe it, Carter conceived the foam tube that could be wrapped around a bat handle to apply a sticky substance.  Then he teamed up with the U Akron lab to create the pine tar substitute. The rest is patent history.

The timing is interesting, too.  The application was filed in July 1994.  That’s just before the baseball strike that ended the season.  Which means that Carter most likely was working on this during the time period between his famous homer and spring training a few months later.  In other words, precisely when he should have been at Disneyworld. 

From the looks of it, however, the TackTube wasn’t much of a success.  You won’t find it sold (or discussed) online, and Carter’s patent expired for failure to pay its four-year maintenance fee.

But you also probably won’t find a bigger name player-inventor.

Major League Patents

With the NHL and NBA playoffs behind us, and as summer finally heats up, we can turn our sports attention fully to baseball. The image at the right, by the way, is from D594,515, issued yesterday for a "Transparent Baseball Bat."  I guess that's not as dangerous as a transparent ball.

I was curious to see if any of the 30 Major League teams owned any patents.  One possibility, I thought, was the L.A. Dodgers, who for a while had a knack for finding and developing talent that was unmatched (e.g., 63rd round draft pick Mike Piazza; a 4-peat (1979-82) and a five-peat (1992-96) of Rookies of the Year; etc.).  Did they have some unique tools at their disposal?  Another candidate was the Oakland A’s, with Billy Beane’s quantification methodologies for identifying undervalued players, as described in Michael Lewis’s Moneyball.  And, of course, perhaps the Yankees simply bought IP they thought was valuable. 

Unsurprisingly, nothing turned up.  Most likely, if any teams did have some homegrown weaponry, they were almost certainly keeping them under wraps as trade secrets, rather than adding those techniques to “the public storehouse of knowledge.”  Looking to basketball for an example, the Houston Rockets GM, Daryl Morey, has gone on the record about holding his Beane-like statistical algorithms very close to the vest. [Brush with fame: Morey was a student of mine when I TA’ed comp sci classes at Northwestern.] And besides, would MLB really allow one team to sue another for patent infringement?  And MLB has some patents, too – one of their own (U.S. Patent No. 7,486,943) and four that it bought and were the subject of last year’s DDB Technologies LLC case in the Federal Circuit.

But it just so happens that there are a few patents tangentially related to particular teams. I’ll follow up with one or two posts that look in more detail at a couple of the more interesting ones.  Stay tuned.

For now, here are the results of my first, simplistic search:  team names appearing anywhere in the spec. “Chicago Cubs”, for example.  In addition to possibly identifying IP owned by teams, it is also is a good indicator of a team’s popularity with inventors, who often use them as examples of their inventions’ embodiments.  Damn Yankees are first here, too.

Team	# Patents Mentioning
NY Yankees	35
Chicago Cubs	17
Boston Red Sox	16
Toronto Blue Jays	15
Atlanta Braves	15
San Francisco Giants	14
NY Mets	11
Minnesota Twins	10
St. Louis Cardinals	9
Cincinnati Reds	9
LA Dodgers	9
Seattle Mariners	7
San Diego Padres	7
Oakland Athletics	6
Cleveland Indians	5
Milwaukee Brewers	5
Baltimore Orioles	4
Chicago White Sox	4
Texas Rangers	4
Philadelphia Phillies	4
Houston Astros	4
LA Angels*	4
Detroit Tigers	3
Kansas City Royals	2
Florida Marlins	2
Colorado Rockies	2
Washington Nationals	1
Pittsburgh Pirates	1
Tampa Bay (Devil) Rays	0
Arizona Diamondbacks	0

* - 3 as California Angels, 1 as LA Angels.  None as Anaheim.

On deck: perhaps the only patent with an MLB player as an inventor.  And he’s an All-Star.

The Sport of the Patent

It's finally breaking 70 degrees in Chicago today, and leading into a weekend, no less.  I expect many of us will be in the park, playing catch or just enjoying the weather.  But for those of you who just can't leave the patent world behind while you recreate, here's some food for thought.

We all know that baseball is America's pastime, and we all know that sports have become big business.  So let's ask: what sport has been the subject of the most patents?  A simple proxy is to search the USPTO database for all utility patents with titles containing the sport's name:

Interesting.  That's a "4" for Jai-alai, by the way. Tennis actually nudges out baseball (though including "softball" pushes it over).  And as of this week, Football and Basketball are tied with exactly 800 patents apiece.

But there's one sport missing from the chart above... hmm...:

Holy cow! 14,510 patents!  That's about 50% more than these other sports combined. Is golf really that much more popular in the marketplace than anything else?  Or does it have more technological underpinnings that allow for innovation?  Perhaps it's all those frisbee golf/disc golf patents. (Not.  There's 18). [4/25/09 UPDATE: These numbers are for utility patents only.  There are an additional 4,900 design patents for golf.]

And what about over time?  If we track the number of golf patents issued each year, we see an unsurprising correlation:

Go figure.  There are a couple of noteworthy points.  First, as you'd expect, tracking all patents issued over time also roughly matches the stock market and the economy. 

But Golf seems to be an even tighter fit:

In other words, starting in around 1983, golf "patent market share" grew significantly and.. could it possibly be... actually led Wall Street by a few years??  That would seem strange, considering that these are patent issuances, not application filings.. and you'd think there would be more interest in golf after the market goes up, not before. If anything there should be a lag effect.

I don't consider myself a statistician, and these results are less than scientific.  But I'd be intereted in your theories.

So please think about it as you hit the tees or shoot hoops or (my fave) watch the Stanley Cup playoffs this weekend, and let me know what you come up with.  And if you'd like to play with the underlying data yourself, shoot me a note and I'll pass it along.

[UPDATE: 4/26/2009 - Just found this nice blog: http://www.golf-patents.com/ about Golf IP issues, by patent attorney David Dawsey.  Now how many other sports have their own patent blog?

[UPDATE 2: 4/26/2009 - There another one: http://www.patentlygolf.com/ ]