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More on property staging and patent law January 27, 2009

Posted by Brian Schar in Patent prosecution, Television.
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Last night I had the misfortune of watching part of an episode of “The Unsellables” on HGTV, which might be characterized better as “The Unwatchables.”  Some poor woman couldn’t sell her house for a variety of reasons, so she had two realtors come into her house and give her some advice.  Her kitchen and dining area were painted a cream color, which couldn’t possibly be a problem; all of the home decor and staging shows bray continually that all colors must be neutral to appeal to the mythical “average buyer.”   However, the realtors clucked disapprovingly at those walls, saying that “neutral doesn’t mean bland.”  What?  I thought the two were synonymous.  They went ahead and made her paint the walls a darkish shade of green, which I would characterize as uncomfortably close to the standard Avocado Green in which appliances and Formica countertops were available in the 70s.

The property owner and the realtors had a bit of a claim construction problem.  The owner interpreted the language “neutral” as being white or cream colored.  This interpretation is consistent with what one of ordinary skill in the art would think, as evidenced by this snippet from About.com:  “Neutral usually means without color. Neutral colors such as beige, ivory, taupe, black, gray, and white appear to be without color, and yet in many applications these hues often have undertones of color.”  Turning to Philips, an online dictionary defines “neutral” as “achromatic”, and “having no hue.”  But the realtors who staged their house had a much different idea, interpreting “neutral” as medium/dark green.  One could chalk this up to the imprecision of language.  Or, more accurately, one could say that the realtors were importing their personal tastes and preferences into the word “neutral,” contrary to the usage of the term in the art.  In that sense, they’re like a patent examiner that goes beyond the “broadest reasonable construction” of a claim term to a “broadest possible construction” of a claim term that goes so far as to strip the claim term of all meaning.  If there were a Federal Circuit for home staging or bad TV programming, the smart bet would be on the property owner’s construction of the word “neutral.”

The property owner also had magnets on her fridge.  For shame.  I’m sure that a handful of magnets, and not the deep recession that most of the world is in, was the magic thing that kept her from selling that house.

At some point in February I will publish the next entry in my MPEP 2143 series.  Please do not hold your breath.

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