Jan. 28: Patent Patentability SKH

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Hotchkiss, A&P

Hotchkiss talks about the nonpatentability of a device which merely substitutes one material for another and the A&P decision restricts what can be patented to those things which are already known to prior art and says that combinations of prior art does not necessarily warrant patent protection, saying "commercial success without invention will not make patentability."


Patent 4240272 is for an arctic canteen system including an insulated carrier with a cavity in the interior for the receipt of a small chemical heating or cooling packet, and a metal container holding "comestibles" enveloped in the carrier. The container sits in the carrier in physical contact with the heating or cooling packet. The packet produces a thermal change within the carrier and so warms or cools the contents of the canteen.

The objective of the invention was to provide a canteen system which includes a container insulated from the ambient and a chemically exothermic or endothermic generator for heating or cooling the contents of the container. It was also to provide a canteen system which would permit filling and repeated use of the system and to provide a container containing a non-vacuum carrier which would permit heating of the container without damage.

Patent 4549410 is an insulator for bottled beverages that creates a refrigerant-free insulator for maintaining the temperature of beverages in bottles. This invention is comprised of an outer shell with a bottom opening for receiving the the container and a top opening so that the neck ring of the bottle might stick out. The shell contains an insulating sleeve within it and a retaining ring around the bottom for supporting the bottom of the container.

The objective of this invention was to provide increased insulating properties to the otherwise poor insulating capabilities of glass and plastic beverage bottles. This invention differs from the prior art by simplifying the process of surrounding the bottle with less parts and the lack of any sort of permanent refrigerant materials contained within the construction of the insulator body. This insulator also allows the easy consumption of the liquid contained within the bottle.

Patent 4228908 is a baby bottle carrier which employs form fitting cavities to completely enclose the bottle, cap, and nipple in a protective arrangement. The invention provides a new and improved slim line insulated carrier for baby bottles that adds little bulk to the bottle but still completely encases it.


Under Hotchkiss, the beer display, keg cooler patent is still valid. The keg cooler does not use a different material than has been used before (the arctic canteen uses a metallic insulator to ensure there is no exchange of thermal energy) but rather uses the material in a wholly new configuration that is patently different than those designs that came before it.


The A&P decision holds that a simple combination of materials in a new manner does not warrant protection. The court wrote that "commercial success without invention will not make patentability." In order to be patented, something new must be created. This device is an extension of what came before but applied to a keg as opposed to a beer bottle. Thus, I would think that using previously used materials and expanding the idea of a thermal insulator to protect the contents of a keg would not be different enough from prior art to retain a patent. However, because the pieces were assembled in such a way as to mimic a giant beer can, that might be enough to differentiate it from the prior utilitarian art.


The Lyon ruling found that, “The most competent workers in the field had for at least ten years been seeking a hardy, tenacious coating to prevent reflection; there had been a number of attempts, none satisfactory; meanwhile nothing in the implementary arts had been lacking to put the advance into operation; when it appeared, it supplanted the existing practice and occupied substantially the whole field. We do not see how any combination of evidence could more completely demonstrate that, simple as it was, the change had not been "obvious to a person having ordinary skill in the art" — § 103. Thus, in order for an invention to hold patent protection, it must be non-obvious to those in the field. This does not warrant patent protection because a skilled mechanic could create the same product by simple tinkering and is not the work of an inventor. I think that the patent should not have been granted under this ruling.