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The United States Patent and Trademark Office will truly look anywhere to find prior art when evaluating a patent application. This was made abundantly clear by its recent reference to the movie Borat when denying a patent application for a “scrotal support garment.” Specifically, US Patent Application 12/071,878 presented a male support device that will look strikingly familiar to fans of comedian Sacha Cohen.
The movie Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan is a 2006 American movie starring Sacha Baron Cohen, a famous Canadian comedian. One of the more infamous scenes of the movie involves Borat (Cohen) wearing a unique one piece swimsuit, which can be seen here. Apparently, someone at the USPTO remembered this scene. It was the basis for the USPTO’s denial of Application 12/071,878. In fact, the USPTO went so far as to provide the diagram seen below as an explanation of the similarities between the proposed invention and Borat’s apparel.
The lesson to be learned from this is that prior art need not come from previously patented items, or even from a likely source. Some critics might think that Borat’s swimwear is not a proper piece of prior art, but under the rules, the USPTO got this right. Specifically, MPEP 2125 states, “Drawings and pictures can anticipate claims if they clearly show the structure which is claimed… The origin of the drawing is immaterial… The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art.” Essentially then, anything can be prior art if it precedes a claimed invention.
This fact has left at least one patent applicant wishing either that Borat had never been filmed or that the employees at the USPTO had refrained from seeing it. Nevertheless, the lesson to be learned is that prior art truly can be almost anything.
- Tracy R. Hancock
Image Source (PDF)
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