High court to rule on patents

Decision could have implications for inventors, Big 3, which help rank state among top for inventions.

Robert Snell / The Detroit News

DETROIT -- Donna Butler hates touching toilet seats so the Detroit woman invented and patented a special handle that mounts to the lid, freeing her hands from what she considered a dirty duty.

Whether inventors like Butler will be able to get their hands on patents as easily in the future hinges on a U.S. Supreme Court case with Michigan ties. That goes for all inventors, whether they're General Motors Corp. or amateurs.

A decision could come this month that would have implications for auto companies and "mad" scientists, all of which help Michigan rank among the top states for inventions. A patent issued by the government prevents others from making, using or selling the invention in the U.S. for a set period of time.

At issue is whether it is too easy to obtain a patent for a product that makes obvious changes to existing inventions. But determining when an invention makes obvious changes to patented products isn't always so clear-cut, said John VanOphem, a Detroit lawyer and vice president of the Michigan Intellectual Property Law Association.

Making it tougher to obtain patents could cut into auto industry profits, said Adam Mossoff, an associate law professor at Michigan State University's College of Law.

"The impact would be (for) companies like Ford and GM that have substantial resources and facilities devoted to making innovations in the field, they might see less of a return on their investments," Mossoff said.

"In that way, it would present an immediate problem for the auto industry."

Individuals and research and development departments at Big Three automakers and suppliers, for example, routinely receive patents for inventions that incrementally improve upon pre-existing creations, Mossoff said.

The Supreme Court case stems from a patent-infringement dispute involving a GM supplier and automotive gas pedals.

Teleflex Inc. filed a lawsuit against KSR International for patent infringement, a case that led to a 2004 appeal.

KSR, which makes adjustable pedals for GM, asked the court to stop the lawsuit, arguing that the Teleflex patent merely combines existing inventions and is invalid.

The court is expected to issue an opinion on the case after reconvening Tuesday.

The auto industry's reaction to the case is mixed.

GM wants a new standard. Its lawyers said patents are easily obtained, arguing too many are issued for "insignificant extensions of existing technology," according to the lawsuit.

Ford Motor Co. and DaimlerChrysler AG don't support either side in the case. They argue that a higher obviousness standard would hinder future inventions.

A few automotive suppliers, including Michelin and Troy-based ArvinMeritor, say in court filings that incremental developments typically lead to new inventions and the current standard should be protected.

The case likely won't have a big impact on another of the state's big employers: universities.

"If you are coming up with the next blockbuster drug or a new way to manipulate the genetic structure of corn, you can tighten (patent rules) as much as you want and that always will be viewed as innovative," Mossoff said.

Patents are a big business in Michigan. Thanks, in part, to the auto industry, Michigan companies and residents received the fourth-most patents nationwide in 2005, but the state's total dipped 12.5 percent in recent years. That dip is attributable to companies trimming research and development, VanOphem said.

A patent protects an inventor from being ripped off by rivals and lets the inventor make money by licensing the creation, VanOphem said.

Without that protection, even on incrementally changed products, inventors could lose their work to copycats, he said.

"If they do make it narrower, I think it would be, ooh, earth-shattering," said Butler, 45, a former Delphi employee whose toilet invention was patented in 2005, and built upon 20 related inventions. "If someone has a dream and they're trying to get it out there, it's going to stop them."

The court case coincides with an explosion in patent applications. There were 417,508 patent applications in 2005 -- up 229 percent from 1985, according to the U.S. Patent and Trademark Office.

Inventors like Jack Shirlin of Wayne are reflected in those figures.

Shirlin is a former jet engineer who spends most days chasing patents inside his dream den, which is really a giant unheated garage.

The disposable electric blanket is there next to the golf ball warmer, not far from the Roof Razor, which is a compressed-air powered shingle stripper. Some are patented, some are pending. All could make Shirlin rich.

Shirlin, 63, is comfortable with a change in patent standards. His inventions, like the patented Roof Razor, are too unique to be rejected, he said.

Marketing is the real hurdle, he said. "I need to find a visionary multimillionaire who wants to have some fun," he said.

You can reach Robert Snell at (313) 222-2028 or rsnell@detnews.com.