Did Jim Henson Infringe on a Recently Approved Patent?

September 9, 2011 Posted by zachary

This post was originally published on Techdirt.

Recently on Techdirt, we highlighted a number of ways the US patent system could be fixed. One of the proposals on the list was allowing for input from those who are skilled in the art behind a patent application. Under this system, a person or company working within the industry surrounding a patent application could review it and submit their reasoning behind whether the proposal is obvious and not patentable or original and patentable. This public input would help patent examiners decide on the final patent-ability of an application.

As an example of why such a public input segment would be beneficial, we have a recent patent, found by io9.com, for “A costume suit modeled after a large size animal“(PDF) This patent, which was submitted by Japanese company ON-ART, which specializes in airbrush painting of large balloons, was approved on August 16, 2011. This patent has a total of twelve claims all having to do with the mechanics of the suit, which allows for the operator to create the realistic movements of the animal he portrays.

Here is a video of the suit in action.

So how does this support the need of public input into the patent system? For this, I submit the 1986 Jim Henson movie, Labyrinth. This movie stars a character by the name of Ludo, a large, hairy monster who is gentle at heart and friends with rocks of all sizes. Ludo was created by the Jim Henson team and allows for a person to sit inside the suit, and to move his head, neck and mouth as well as his arms and legs.

Below is a portion of the Labyrinth production video featuring the creation of Ludo.

Had public input been allowed, Disney, which owns Jim Henson Productions, would have been able to submit their prior art and this patent would have been either resubmitted with a more narrow focus or rejected outright. Unfortunately, the final patent-ability of this costume will not be determined until a costly legal battle takes place.

I may be a lay person when it comes to costumes modeled after large animals, but I find nothing unique or original about the patented dinosaur costume when compared to the 25 year-old prior art of Ludo. The only explanation I can think of is the that patent examiner really was not familiar with costumes and relied too heavily on the patent applicant to do the search for prior art. To wit, the applicant informed the US Patent Office, “a full-scale costume of a large size animal that is able to make a realistic movement has not been disclosed.”

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