Patents In the Shark Tank

My family and I enjoy watching Shark Tank. It’s a mix of business, technology, humor and, in some cases, is a testament to the entrepreneurial spirit of people. Of course, we realize it is mainly about entertainment. It doesn’t mean, however, that there aren’t some learning opportunities to be had.

As a patent attorney, my ears perk up a bit when I hear a shark ask about patents or patent applications or when the team seeking investment (the “contestant?”) mentions either having a patent or having applied for a patent. I have previously written about the differences between having obtained a patent and having applied for a patent. When this issue comes up on Shark Tank, I point it out to my wife and daughter but they just roll their eyes and say “we know, we know.”

When patents come up on Shark Tank, there isn’t an in-depth discussion of what the issued claims cover or what scope of coverage is being pursued. The show isn’t set up for that type of analysis and, I will admit, would be deadly boring if ever there was such a discussion. It is surprising to me, however, that sometimes the sharks consider having or not having patent protection (pending or issued – it doesn’t seem to matter) is important to whether or not they will invest without having any idea as to the scope of protection. Again, merely saying one has a patent or a pending application, without providing an understanding of what the claims cover, might give a potential investor some comfort but it really doesn’t convey any useful information.

Recently, Funbites came on seeking an investment. Funbites sells a device that cuts kids’ food into different shapes. During the pitch, Funbites told the sharks that they had an issued patent and they were ultimately successful in landing a shark. It’s not clear that having a patent helped land a shark, however, looking at the device, I wondered what the patent claims covered.

It didn’t take too much research to find Funbites’ U.S. Patent 8,695,220 (‘’the ‘220 patent”) with the not-so-fun-sounding title “Hand-Held Food Cutter with Shape Imparting Device.” As we know, however, it is the patent’s claims that determine the scope of coverage, i.e., its strength, as they define what others cannot make, use or sell without possibly being liable for infringement.

There are some general rules when it comes to claim interpretation:

1. broad claims are better than narrow (more specific) claims; 
2. long claims are narrower than short claims; and 
3. it’s easier to avoid infringing a narrow claim. The second rule is true because long claims include more components and make it more specific as to what the claim covers. The third rule tends to be true because, generally, infringement can be avoided by not including one or more component recited in a claim and, as there are more components in a long claim, it’s likely something can be removed or changed.

The ‘220 patent includes 14 claims with claim 1 being the only independent claim – and it is pretty long and, therefore, narrow. This is not surprising as it may have been necessary for the claim to be more specific in order to overcome the prior art cited against it during its examination in the Patent Office. The evolution of a claim during its pendency in the Patent Office will have to be the topic of a separate article. Suffice it to say that they obtained a patent but it’s narrow.

So, where does that leave us? Someone wanting to compete with Funbites or understand the scope of coverage will read the ‘220 patent and review claim 1. This review would probably include determining what components are “specific” and, therefore, might be changeable to make a cutting device that would not infringe the claim.

Without reciting the whole claim here, there are a number of terms in the claim that could be removed or changed in a competing device such that the competing device would likely not infringe. For example, the claim requires “an arcuate convex shaped bottom edge that is beveled for cutting the food” and “bottom edges” of second walls that are “V-shaped cutting edges” and where “bottom edges” of “vertical end walls only are beveled along an inner surface thereof.” (emphasis added). What if the competing device has a bottom edge that is not an “arcuate convex” shape and is not “beveled for cutting?” What if something different than a “V-shaped cutting edge” is provided? What if the vertical end walls are not beveled only “along an inner surface?” It may be arguable that these changes take the competing device out from the scope of the claim.

There are certainly other aspects of the claim that might be changed to avoid its infringement and the foregoing was not meant to be an exhaustive list. It does seem, however, that there are points that could be changed in order to avoid being accused of infringement. Generally, however, when considering whether a device is “cleared” with respect to an issued patent it’s highly recommended that you consult with an experienced patent attorney.

I recognize that the sums of money that the sharks are investing on the show are relatively small and that there isn’t a lot of time for due diligence including patent portfolio review. I would expect that their larger deals include a comprehensive review of the IP positions of the parties. I just want the reader to understand that merely saying one has a patent or has applied for a patent doesn’t necessarily mean that a strong position has been staked out and that it doesn’t take that much to make such a determination.

DISCLAIMER: These are just the personal opinions and musings of one who watches too much television and thinks too much, sometimes, about patents. No one should rely on this analysis as to the relative strength or weakness of any patent discussed herein nor should anyone base any business decisions on the opinions expressed herein.

So, You've Just Read About Someone Getting a Patent

A day does not go by without a new article about a company or individual obtaining a patent. A company itself may be behind an article because it wants to hype its technical achievements, as was the case with “Powerhouse Dynamics Gets Patent for Appliance Monitoring Technology.” Or someone may publish a piece to report on his patent “sleuthing,” see “Apple Patents A Smarter, More Accurate Wrist-Based Activity Tracker.”

Understanding some basic patent concepts will help you interpret this kind of “news.”  It will also help you in discerning what your competition may be up to with their (possibly) patented new technology.  Some definitions are in order:

According to 35 U.S.C. 271, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States,….infringes the patent.”  This is often referred to as a “negative right” in that a patent provides the patent owner with the ability to prevent others from making, using, selling, etc.  As to determining what has been patented, i.e., what is protected, one looks to the patent claims.

A patent, according to 35 U.S.C. 112, includes “a written description of the invention, and of the manner and process of making and using it, in … terms as to enable any person skilled in the art … to make and use the same.”  In addition, the specification “shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”  If you have ever read a patent, those numbered paragraphs at the end of the description are the claims and, in some cases, may be where you stopped reading because they can be, at times, inscrutable.

The claims define the “metes-and-bounds” of the invention and one looks at the claims to determine whether infringement has occurred.  The claims are central to understanding the protection provided by the patent.  The interpretation of claims, however, has filled volumes of court decisions and is beyond the scope of this article.

In the United States, patents issue every Tuesday and are assigned a patent number.  As of this writing, Patent No. 8,671,461 appears to be the highest number to date.  An issued patent gives the owner the rights of exclusion outlined above.

Additionally, every Thursday, pending patent applications are published per the American Inventor’s Protection Act which requires publication of some patent applications eighteen months after their earliest effective filing date.  Not all patent applications, however, are published. These publications are given a number in the form of 20140075637, where the first four digits indicate the calendar year.  Published patent applications, in and of themselves, do not provide the owner with any exclusionary rights although they may function to put potential infringers on notice (an issue not being discussed here).

So, returning to the two online articles above, we note that the first one tells us that “Powerhouse Dynamics has been awarded a patent for a technology which can remotely monitor appliances to gauge how efficiently they are operating.”  This tells us that they are talking about an issued US patent.  One could then look to the claims to get some idea of what was being protected.

The second online article indicates that Apple has patented some technology, at least according to the title.  Reading further, however, it states that “Apple has applied for a patent for an improved wearable pedometer design….”  Clearly, this is referring to a pending patent application.

There is, however, information to be obtained from reviewing a published application.  First, patent applications may reflect the technical area a company is researching and indicate where new products from that company may be targeted.  By looking at the published claims, one can get a sense about what aspect of the invention the applicant is trying to protect.  This could be different from the characterization provided in an accompanying article or press release.  In addition, once a patent application has published, its progress through the Patent Office can be monitored by third parties who can then possibly discern the ultimate scope of coverage as based on the claims.

I have attempted to provide the reader with an understanding as to the differences between an issued US Patent and a US Patent Publication and how reviewing the claims will give an indication of the protection obtained or being sought, respectively.  It must be strongly emphasized, however, that one should only rely on a claims interpretation provided by a qualified attorney, as the claims construction ultimately relies on more than just the words in the claims.  Any business decisions, and certainly conclusions as to non-infringement, must be based on a qualified analysis.