BY: ROSANGELY FRICK

Think that a steak cut should be the focus of a cutting edge patent story?  Perhaps not when compared to a patent on Beerbrella, a device that keeps your beer cool by sheltering it from the sun. Even more extreme is the patent for a non-lethal cock fighting system (despite the outright illegality of cockfighting in a majority of states in the United States).[1. Crazy Patents!, FPO, IP Research and Communities, freepatentsonline.com, http://www.freepatentsonline.com/crazy.html (last visited October 11, 2012).] There is also the patent for “Stud Spectacles” – eyeglasses that attach to facial piercings; not to mention a patent for a motorized ice cream cone.[2. Id.]

Earlier this year, Oklahoma State University claimed a patent for a steak cut they are calling “The Vegas Strip Steak,” which some have said is akin to the New York Strip steak.[3. Andrea Tarantola, Steak Specialist Discovers a New Cut of Beef, Gizmodo, The Gadget Guide (May 15, 2012, 4:40 PM), http://gizmodo.com/5910505/steak-specialists-discover-a-new-cut-of-beef.] This patent would cover the procedure involved in cutting the steak, not for the actual steak itself, since objects found in nature are not themselves patentable.[4. Karl Rustiala & Chris Sprigman, The Vegas Strip Patent, Freakonomics, The Hidden Side of Everything, (Jun. 01, 2012, 12:26 PM), http://2012/06/01/the-vegas-strip-steak-patent/.]   From the inventor’s perspective, patenting an invention, such as a steak cut, would protect the invention from being copied, while raising the monetary value of the invention due to its uniqueness.

But what exactly is the patenting process and how much protection does it afford the inventor? Patents grant “the right to exclude others from making, using, offering for sale or selling the invention throughout the United States or importing the invention into the United States”[5. 35 U.S.C. § 154 (2000).] for up to twenty years.  They are often characterized as giving the inventor a temporary monopoly over his creation in exchange for information about the invention. Essentially, the inventor has to disclose what it is that makes the invention innovative.[6. Patents, Ius Mentis, Law and Technology Explained, http://www.iusmentis.com/patents (last visited October 8, 2010).] By providing information as to how the invention is created, the inventor gives way for others to make improvements on that invention, thereby benefiting society in general.[7. Id.]

But while it may seem that just about any absurdity could qualify for a patent, there are threshold criteria for patent seekers.  In order to qualify for patent, the invention has to be a new and useful process, machine, manufacture or composition of matter or a new improvement.[8. 35 U.S.C. § 101 (2000).]  The novelty has to be such that it would not be obvious to a person of average intelligence and creativity.  Yet, despite these requirements, patent applicants manage to describe their inventions, however peripherally useful or new, in such a (no pun intended) creative way, that patents are approved regardless of their marginal utility and novelty.

As of February 2008, the U.S. had granted over 7 million patents.[9. Wikipedia, United States Patent and Trademark Office, http://en.wikipedia.org/wiki/United_States_Patent_and_Trademark_Office, (last visited 10/12/2012, 11:18 AM).]  Due to this emerging proliferation of patents, the public policy motivation behind them, to induce innovation, is being stifled, precisely because of the exorbitant number of patents being granted.  In the mobile industry in 2011, Samsung alone was issued almost 12,000 patents and Apple 1,000 (which, granted, pales in comparison to Samsung’s numbers)[10. Stacey Higginbotham, Stat Shot: Ranking the Mobile Patent Powerhouses, GIGAom, (Aug 18, 2011), http://gigaom.com/2011/01/18/stat-shot-ranking-the-mobile-patent-powerhouse/.] and we have seen the patent warfare saga that has ensued between these giants as a result of the constellation of patents they now own.[11. Steve Lohr, The Patent, Used as a Sword: An Outtake from the 1980s, N.Y. Times, (Oct. 8, 2012, 5:27 PM), http://bits.blogs.nytimes.com/2012/10/08/the-patent-used-as-a-sword-an-outtake-from-the-1980s/.]

We are now facing the competing principles of protecting and promoting creativity as enforced by the courts, on the one hand, with the recent rise in patent litigation. This rise in litigation has the effect of discouraging innovators of small means from daring to enter the industry, in fear that they will be infringing on an already existing patent and face a lawsuit that they cannot afford.[12. Id.]

But perhaps the solution is not to make it impossible for questionable inventions like The Vegas Strip Steak or The Beerbrella to come into patentable existence, but for courts to raise the pleading bar for patent lawsuits.  Courts should demand more from the Apples and Samsungs of the world when these big companies try to highjack innovation in the industry by suing the inventors of new products that compete with theirs.

Although I have come close to ridiculing the patent on the Vegas Strip Steak, the fact that it exists is a reminder that we should be free to create products and ideas, however slightly innovative or useful.  This, in the long run, is the only way to foster creativity as we move forward.