Intellectual Property Law for Engineers, Scientists, and Entrepreneurs. Howard B. Rockman
he immigrated to the United States, where he was hired by Universal Fastener Company. He possessed excellent design skills, and, full disclosure, he was married to the plant manager’s daughter. Sundback eventually rose to the position of head designer at Universal Fastener.
Between 1906 and 1914, Sundback produced several improvements on the fasteners previously designed by Howe and Judson. Judson’s fastener was based on hooks and eyes, and Sundback eventually developed an improved version of that product, called the Plako. However, the Plako fastener had a tendency to pull apart, and was no more successful than previous fasteners. Sundback solved the pulling apart problem in 1913 when he invented the first fastener version not based on the hook and eye principle of previous fasteners. Known as “Hookless Fastener No. 1,” he increased the number of fastening elements used in previous fasteners from four per inch to 10–11 per inch. His invention also comprised two facing rows of teeth that were pulled into a single connected piece by a slider. Sundback also increased the opening for the teeth guided by the slider.
In 1914, Sundback developed “Hookless No. 2,” a version of his fastener based on interlocking teeth, which was the same as the modern metal zipper of today. In this fastener, each tooth was punched to have a recessed dimple on its bottom, and a nib or conical projection on its top. The nib on top of one tooth mated with the matching dimple in the bottom of the tooth that follows it on the other side as the two strips of teeth are brought together through the two Y‐channels of the slider. The teeth are ultimately crimped together tightly to form a strong fabric cord defining the selvage edge of the cloth tape that attaches the fastener length to the garment. The teeth on one side are offset by half a tooth’s height from those on the other side. The teeth are held tightly to the cord and tape so that, once meshed, there is insufficient play to allow the teeth to pull apart. A tooth cannot rise up enough on the nib below it to break free, and the top nib cannot become dislodged from the dimple in the tooth above it. Sundback’s U.S. Patent No. 1,219,881 for his Separable Fastener was issued in 1917.
Sundback also created a manufacturing machine for his new fastening device. The machine took a special Y‐shaped wire and cut scoops from the wire, then punched the scoop dimple and nib, and clamped each scoop on a cloth tape to produce a continuous fastener chain. Within the first year of operation, Sundback’s machine was producing several hundred feet, about 100 meters, of fastener per day.
During World War I, Sundback’s separable fasteners were reportedly used in U.S. Navy flight suit prototypes. However, the aviator garments apparently did not work well initially, but the flight suit prototypes created initial interest in these new fasteners in the garment industry.
In 1923, B.F. Goodrich Company developed the name “zipper,” and used the device on their new galoshes that were designed to be worn over dress shoes to keep the shoes dry in wet weather. The term “zipper” became short for “zipper up,” which is a manifestation of the “zzziiip” sound a zipper makes when it is being zipped up. At that time, boots, gloves, and tobacco pouches were the primary use for zippers. It took another 20 years before zippers were commercially noticed by the fashion industry. By World War II, the zipper had achieved wide acceptance for the flies of trousers and the plackets of skirts and dresses.
In the 1930s, a sales campaign began for children’s clothing featuring zippers, with the theme that young children would become self‐reliant by allowing them to dress themselves in self‐help clothing. In 1937, French fashion designers raved over the use of zippers in men’s trousers. Esquire magazine at one time stated that the zipper was the newest tailoring idea for men, and a virtue of zipper flies was that they would prevent “the possibility of unintentional and embarrassing disarray.”
A boost for the zipper arrived when zippers could open on both ends, such as on jackets. Thousands of zipper miles are presently produced daily. You may see the letters “YKK” printed on some metal zipper pull‐up tabs. This stands for “Yoshida Kogyo Kabushikikaisha,” a Japanese manufacturer that produces approximately 50% of all zippers sold throughout the world.
4 Introductory Comments on Patentable Subject Matter and Utility
4.1 WHAT CONSTITUTES PATENTABLE SUBJECT MATTER?
4.1.1 Categories of Patentable Subject Matter
The first threshold that must be reached in determining whether your invention constitutes patentable subject matter is to establish that the invention itself is in the form of an embodiment, such as a prototype, or has been described or illustrated in terms sufficiently tangible and concrete, and not merely conceptual, to qualify for patent protection. Once this tangible or illustrated embodiment of your invention has been created, it must be determined whether the invention falls within one of the statutory classes of patentable inventions covered by 35 U.S.C. Section 101, which means that the invention must be a process, a machine, an article of manufacture, or a composition of matter, or any new and useful improvement thereof. At this point, it must also be determined whether an article patent, method (process) patent, design patent, or a combination of any of these would best serve the interests of protecting the technology embedded in the invention. More recently, algorithms embodied in software and tied to a machine, biotech strains, and business methods are patentable subject matter, but only under certain conditions. These three types of inventions and the present rules regarding their patent eligibility will be discussed in the ensuing chapters owing to the somewhat complex nature of the legal analyses applicable to these categories of inventions.
More specifically, a process or method may involve treating a material to produce a particular result or product, or may involve manipulating tangible matter to produce a desired end result. One example would be a process to temper glass to make it break resistant. Processes can also comprise a new use for a known composition, such as a new use for a known chemical compound.
A machine is a device that performs a useful operation, usually having mechanical or electrical components, such as, for example, springs, hinges, transistors, resistors, sensors, controls, etc. A composition of matter is a combination of two or more substances, and includes chemical elements or compositions, such as a soft drink formulation or a drug compound.
A manufacture is a catch‐all category for the remaining statutory subject matter which comprises anything not a process, machine, or composition of matter. A manufacture may be a human‐made genetically engineered bacterium, for example, which is capable of breaking down crude oil. Included among “things” that are not patentable subject matter are purely mental processes, naturally occurring articles, scientific principles, and abstract ideas.
4.1.2 The Invention Must Be Useful and Work for Its Intended Purpose
To be patentable, an invention must be shown to work for its intended purpose. Under the Constitutional mandate of Article 1, Section 8, patents can only be granted for advances in the “useful” arts. A patent cannot be granted for an inoperative device or method, and is subject to post‐grant cancellation if the covered device is proven to be inoperative. This is the reason why patents on perpetual motion machines are not granted—they do not work. See Section 4.2 ahead.
4.1.3 The Invention Must Be Novel Compared to the Prior Art
Throughout the globe, patents are granted only on inventions that are novel, as measured against the vast body of relevant prior art existing in the world. For example, a public disclosure, use, or sale of, or an offer to sell, a product anywhere in the world by you or someone else, which product embodies your “new” technology prior to the home country filing date of your patent application, is considered prior art in many industrialized countries and would bar you from obtaining a patent. In the United States, an inventor has a 1‐year grace period to file a patent application after a public disclosure of the invention. These