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.