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All I needed to learn about patent law I learned before kindergarden April 3, 2009

Posted by Brian Schar in Patent prosecution, Television.
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As a father of a toddler, I find myself watching and thinking about children’s programming far more than I ever thought I would.  It occurs to me that my old favorite “Sesame Street” feature called “One of These Things is Not Like the Others” is now what I do for a living.  I’m OK with that!

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.

Property staging and patent law November 5, 2008

Posted by Brian Schar in Federal Circuit, Television, USPTO.

I end up watching a lot of HGTV, for reasons irrelevant to this blog.  One of my least favorite shows is “The Stagers.”  Property stagers purportedly redecorate the seller’s home to make it appeal to the Average Buyer, theoretically causing the home to sell faster and for a higher price.  However, the end of “The Stagers” puts the lie to its own premise, by showing the list price of the home, the cost of staging, and the final sales price.  I’ve never seen one of the staged homes sell for more than the list price plus the staging cost, so staging was a waste in every case.

I started thinking about the concept of the Average Buyer a few weeks ago.  The reality is there is no such person.  All buyers have different tastes, different needs and different wants.  Being a patent attorney, I also started thinking about the similarity between the mythical Average Buyer and the mythical Person Having Ordinary Skill in the Art (PHOSITA).  The PHOSITA is constructed out of thin air by lawyers and judges.  Projected onto the PHOSITA are the arguments and thoughts of each party – the fictional PHOSITA does not have a mind of his own.  The Average Buyer of real estate is similar – a fictional entity onto which the subjective tastes of the stager and the seller’s agent are projected.

What can you do with this information?  Nothing at all, really – other than think very carefully before you decide to stage your house if you’re a seller, and to remember that you’re not buying the furniture and that paint is cheap, if you’re a buyer.

I’ve been promising it forever, but a blog update regarding MPEP 2143 is on the way.  Maybe next week.

Television disconnect June 10, 2008

Posted by Brian Schar in Off topic, Television.
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Whenever the Freemans from HGTV’s “Secrets That Sell” see a television in a home for sale, they immediately order the seller to remove that offensive object from the room.   But the Freemans are hosts of a television show, which cannot be viewed without a TV!  I’ve never seen people so eager to destroy their own ratings, one household at a time