ABSTRACT
A wooden stick. A crustless sandwich. The comb-over. These commonplaces of everyday life share one remarkable feature: each was once protected by a United States patent. Patents like these – so-called ‘silly’ patents – are humorous because they present a manifest incongruity between common knowledge and the statutory patentability requirements of novelty and nonobviousness. Yet the fact that patents like these were successfully prosecuted and issued by the US Patent and Trademark Office (PTO) is no laughing matter. This article, for the first time, takes silly patents (sort of) seriously. It analyzes the prosecution (and reexamination) histories of five exemplary silly patents – three from the ‘golden age’ that existed from the late 1990s to the mid-2000s (swinging sideways on a swing, a stick toy for a dog, and exercising a cat with a laser pointer) and two recent ones (a playground swingset reinforced with a metal brace and a foam pad for sanitizing shoes) – to shed light on the manner in which such inventions came to be patented. This analysis explains not only the silly patent phenomenon in US patent law, but sheds light on challenges that continue to face patent examiners when dealing with less silly inventions in fields such as online commerce, software and business methods. The issues illuminated by these findings include the difficulty of identifying prior art that lies beyond established databases of patents and scientific literature (so-called nonpatent literature or NPL) and the inability of patent examiners to rely on common knowledge to challenge even the most intuitively obvious inventions.
Contreras, Jorge L, Silly Patents, Serious Issues (November 24, 2025).
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