While this is meant to be a cautionary tale about allowing frustration with inappropriate patent rejection to boil over, I’m much more concerned with inappropriate patent granting.

Perhaps all the irascible ruminations in that letter properly reflect inappropriate roadblocks placed on some applications, But they certainly seem inappropriate with regard to the subject application.

I tend to disagree that the claim is for a two-legged tripod although that is a clever jest — perhaps more clever than the application. I agree the written claim is ambiguous. But the illustrations of the embodiments with the exception of the wheeled version are clearly tripods and I put the disappearance of the third leg on the wheeled version down to the perspective of the illustration and desire to show the axle and two wheels. It is not at all clear to me that the third leg is not eclipsed behind the other axle leg. This provides an outlying support for the axles on either side and reduces the manufacturing attention needed to manufacturing an axle that would only be held a the center – and it is hard to see an advantage to a two legged design overall. And, in any event, even with a single leg to an axle the sprinkler still has in 2 wheels and a now wheeled leg presenting the typical tripod stance – regarding three points defining a plane (is that patented yet . . . )

My problem is the focus on prior art as somehow eclipsing what to me are obvious increments one can apply to previously know innovations. If this attorney has cause to be upset that an ‘invention’ of his client is rejected, it is only because of the woeful state of attention to obviousness in the first place.

This telescoping water delivery has been commonly used in dishwashers and in the irrigation market in lawn sprinklers. Whether the earlier embodiments were innovations to a great enough extent to confer patent protection it just seems – with homage to the host – that the proposed telescoping sprinkler is patently obvious. The need for height in sprinkling is no mystery to anyone who ever placed their sprinkler on higher ground for further reach or on top of a crate or upside down trash barrel. The connection of the hose at the tripod rather than to a gracefully bent extension as in prior art is obvious and balances minor pressure loss against convenience of connection. That is a question of marketing and implementation not of patentable innovation IMO.

To simply embody these obvious workarounds is marketing more so than invention. I’m all for marketing and trademark but the notion that prior art all but subsumes obviousness ignores that, just because something is not commercially available, does not mean it is not obvious. It may just as or more likely mean there is a question of how big the market is for that embodiment.

Additionally, simply stating that there is a potential large market for a different embodiment doesn’t mean that is a patentable innovation. Amazon’s one-click is a case in point. In justifying the claim Amazon detailed that the typical web based shopping cart model could take longer to complete and order than the shopped had taken to find and choose a single item. And that wasn’t obvious to everyone using web based commerce without that stunning disclosure of intellectual property by Amazon. Give me just a small break. Now I haven’t viewed all the archives here, so I’m probably just late to that pile on in this forum, but I don’t see the telescoping lawn sprinkler with a couple cheap plastic wheels as any different, other than in likely market share. But the fact that something isn’t so obviously marketable doesn’t mean the embodiment isn’t obvious to anyone practicing the prior art. To me, prior art doesn’t show there is no difference in this claim, rather it discloses that it is obvious.

The real innovations necessary for one-click were security and a track record for internet shopping in the first place so that customers could feel safe leaving their information on file, but what is the metaphorical difference between one-click ordering and having a commercial account with any business.

While I understand that one-click has been rendered hollow, this is reputed to come from prior art when obviousness should have defeated this out of the gate.

I understand it is difficult to establish a binary obviousness criteria and this will always raise a degree of subjectivity, I just think it is virtually ignored when it is the obvious bar to patenting the majority of marketing and embodiment innovations.

I know this comment is modestly out of place in a thread about lawyerly conduct, but it seems every time a patent case comes to my attention I’m left wondering why the ‘invention’ is eligible for a patent in the first place.

Well, back to my lunch of sandwiches with the edges sealed with a fork – taught not by the high art disclosed by Smuckers, but by my mother 50 years ago.