Friday, April 15, 2011

US 7,910,531 overcomes KSR obviousness by asserting unpredictable outcome via allusion to Popular Science [!]

The story of the issued U.S. Patent 7,910,531, about making colored soap bubbles, illustrates the misguided efforts in patent reform as to post-grant review (aka, patent opposition).

The first claim of US 7,910,531, titled Composition and method for producing colored bubbles, states:

A thin film forming a colored bubble comprising:
a colored bubble having a single color uniformly dispersed in the thin film,
comprising: water; a surfactant; and a colorant, wherein the colorant is uniformly dispersed in the thin film; and wherein the bubble is uniformly colored by the colorant.

Let's see, that's A forming a colored B, comprising a colored B having a single color uniformly dispersed in the A, ...

Soap bubbles can have colors in the ABSENCE of any colorant. Such colors of the bubble are dependent on the thickness of the film soap defining the bubble. Light gets reflected at both the inner surface and at the outer surface of the bubble, and one can have constructive and destructive interference as between the two, depending on wavelength.

All right, soap bubbles can appear colored through interference effects. In the '531 patent, the soap bubbles have color because of a colorant, which absorbs light of a certain wavelength.

How did this play out during prosecution of the patent application? An internet web site,, was cited for the proposition: "you can't color a bubble since its wall is only a few millionths of an inch thick." Well, a soap bubble wall is thin, but colorant molecules are a lot smaller. "You can't color a bubble" is a false statement. As to negating the KSR issue of predictable results, the applicants asserted the present invention of colored bubbles yields unpredictable results. Somehow, an article in Popular Science in 2005 including text "soap bubbles, now in color" was used to convince the examiner of non-predictability. Hmmm, adding a colored dye to produce a bubble of that color is supposed to yield unpredictable results? What color did one expect here? An award from Popular Science negates predictability?

Not surprisingly, a re-exam, 95/001,582, was filed (by Crayola LLC) on March 22, 2011, the very day US 7,910,531 issued.
The basic brief is 210 pages long, with the first (of many) prior art documents being a paper in the journal Langmuir of the American Chemical Society. about a soap bubble with a Rhodamine dye imparting a color. The re-exam request is inter partes, under 35 USC 311 and 37 CFR 1.913. The re-exam asserts anticipation and obviousness.

See also
Bubbles, Zubbles patent trouble including

"We are a small company, they're a big company," said Marc Matsoff, a partner in C2C. "Do I think there is potentially some infringement, yes ... if colored bubbles were so easy and we aren't doing anything new, why hasn't everyone come out with colored bubbles?

***As to patent reform, the rapid filing of a re-exam request as to US 7,910,531 makes one wonder about assertions of the benefits of post-grant opposition. For example:

The Senate version of post-grant opposition will allow anyone to petition the USPTO to cancel a patent claim from an issued patent within the first nine months after it was issued. Such a system would provide a much less expensive way for third parties to challenge a patent as compared to current options and would further harmonize U.S. law with other countries, many of which offer some type of post-grant opposition.
[from ANTHONY P. GANGEMI, Congress Considers Significant Changes To Patent Law ]

One notes that the current option of inter partes re-exam is much less expensive than the proposed option of post-grant review. The Crayola folks understand this. Why doesn't Congress?


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