Monday, March 8, 2010

Can Anyone Sell Taggies?

Dear Rich: My question is in regards to what some people call the, "Taggie" blankets. I see that a lot of people make and sell them on I've heard that there was some sort of controversary with this is...and that any kind of looped ribbon sewn between two types of fabric is patentened by the TAGGIE corporation. I've just learned how to make these myself and intend to sell them, but I won't if there are legal issues. Yes, you are correct that Taggies is patented (RE38,782). Without going into all of the boring details, if you step on the innovation that is described in the patent, you'll become a potential defendant (Although we haven't seen any lawsuits, apparently the company does send out C&D warnings.) Would it be worthwhile to challenge the patent's validity? If Taggies was "obvious" to those in the children's blanket-making field before the patent was filed, then the patent will be invalidated (assuming somebody has the time and money to fight the battle).
We turn to the experts. So, the Dear Rich Staff asked Greg Aharonian, a professional patent searcher (and author and patent gadfly) what he thought about the patent's validity (and it looks like it would be a tough challenge).  Greg reports: "I can observe a few things. First, the applicants submitted a fair amount of prior art, both patents and non-patents, more than most patents, so it looks like the inventors were seriously pursuing the patent. They submitted multiple examples of a close piece of prior art, "Tag Along Tags blankets," and still got the patent issued. And they cite 'Taggly,' a toy that has tags, which they argue doesn't anticipate a blanket, but is otherwise prior art. So a primary examiner issued them the patent - twice (the patent and the reissue). So circa ten years ago, their invention was considered non-obvious enough to be granted a patent." 
Would their patent hold up with today's obviousness standard of  "what is predictable" from KSR? Applying that newer standard, Greg says, "Is a Taggie blanket a predictable variation of the Taggly taggy toy? Well, if you squish the toy flat, you have a blanket-shaped object with tags - the Taggies patent. Seems a predictable variation to me. Or not? The Court of Appeals of the Federal Circuit (CAFC) has made a mess of things. A few PATNEWS ago, I mentioned a recent CAFC decision where two judges ruled that it is obvious to go from a Marilyn Monroe card with non-memorabilia item attached - to a baseball card with a memorabilia item attached. Yet Judge Rader, the next chief justice of the CAFC, dissented, saying it wasn't obvious, and that his two colleagues were basically .... idiots. I have no idea how these same three judges would rule on the Taggies patent. And no one else could predict their decision as well, because obviousness caselaw is such a mess. So is the Taggies patent obvious in light of the cited art (or anything similar I could find in a search)? I would rather try to achieve world peace." Thanks Greg, and we're sure if you applied the same skillset you use in busting patents to world peace, the world would be a better place.