Intellectual Property Directions

Lawyers and judges are not known for their comedic prowess, but when the appeal before the court involves the slippery topic of, uh, “sexual devices”, at least one honorable justice couldn’t hold back; the opinion in Ritchie v. Vast Resources is laced with tongue in cheek humor, if you’ll pardon the expression.

While I suggest you read the short opinion yourself, here are a few selected comments:

Both firms produce what the parties call “sex aids” but are colloquially referred to as “sex toys.” A more perspicuous term is “sexual devices,” by analogy to “medical devices.” The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.

The patent claims a “sexual aid…fabricated of a generally lubricious glass-based material” [...] By “lubricious”—a word whose primary meaning, appropriate for a sexual device, is “lecherous”—the patent means only “slippery,” which is the secondary meaning of the word.

Nevertheless, though the plaintiffs’ invention is useful (setting aside any qualms that one might have about sexual devices in general), it is not patentable if it would have been “obvious,” not of course to the average person but to a person having the relevant technical skills.

Jay Leno and David Letterman watch out - apparently there’s a judge with an eye for your job.

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