Patent Law

Pole Position

By Gary Odom and Jordan Kuhn

Gary Wheeler cast for a fishing pole patent, and got snagged by the patent appeals board, which found Wheeler's illuminated transparent pole anticipated by fishing pole with a light bulb attached to the tip. The CAFC illuminated the pathetic shambles that the rejection-crazed patent office has become: they don't even comprehend §102.

In Gary Edward Wheeler (CAFC 2008-1215)

Wheeler argues that claim 1 cannot be anticipated by the Kelly reference, for Kelly does not show a transparent flexible illuminated pole. The Kelly fishing pole has a light bulb attached at the tip of the pole, connected by wires to the handle. Although the Board recognized that the Kelly pole is not transparent and is not illuminated except for the tip, the Board held that "the term 'elongated fishing pole [sic: rod] being made from a transparent, flexible material' does not require the entire rod to be made from a transparent, flexible material or to emit light along its entire length" (brackets in original). That is inaccurate, for Wheeler's specification and claim 1 state that the entire rod is transparent and flexible and illuminated. J.A. 61, 63.

On this appeal the PTO argues that Wheeler's rod is not necessarily transparent along its entire length because obstructions such as line guides or reflective material can be placed in or on the rod, thereby interrupting the transparency. However, the ground of rejection is "anticipation," and it is clear that Kelly does not show the Wheeler pole, even if the transparency is interrupted, for the Kelly pole is illuminated only at the tip and handle. See Akzo N.V. v. United States Int'l Trade Comm'n, 808 F.2d 1471, 1479 (Fed. Cir. 1986) ("anticipation requires that each and every element of the claimed invention is described in a single reference.").

Reversed and remanded. Anticipate the next appeal: Obzilla goes fishing.

Full post as published by The Patent Prospector on December 20, 2008 (boomark / email).