Much has been made on social media about Apple's latest innovations in the field of paper shopping bags, some of it poking fun at Apple and some of it poking fun at the patent system for awarding Apple a patent on this “innovation”.
A lot like recent articles on the Hamdog “patent”, the devil of this story is in the detail. From my perspective as a patent attorney, this story is also a light-hearted example of the importance of professional patent advice when considering patent freedom to operate issues.
Patents provide a monopoly right to the patentee which allows the patentee to prevent others from working with his invention. Critically, however, such rights only arise upon the grant of a patent, and a patent is granted only once a patent office has examined the invention claimed in a patent application and deemed it to be worthy of patent protection. Until a patent application passes this examination there are no rights to enforce.
Patent applications can be filed on essentially any subject matter, but subject matter which is not novel, not inventive enough, unclear, insufficiently described or lacking in industrial utility will not pass examination and so will not be granted.
Apple’s "patent" for a paper shopping bag is in fact patent application (US 20160264304 A1). As such, Apple does not (yet) have a monopoly right on the paper shopping bags disclosed therein.
Even though some of the claims of the application as filed are remarkably broad:
1. A retail paper bag, comprising: a bag container formed of white paper with at least 60% post-consumer content;
there seems to be almost no chance of these claims standing up to examination. However, on closer inspection the application also has more specific claims bringing in particular structural features which improve the bag’s strength and so on, i.e. developments which are designed to solve problems with existing paper shopping bags. Although modest, these are nonetheless relevant problems which may be deserving of patent protection. As such, these more specific embodiments may be more likely to stand up to patent examiner scrutiny, but the scope of any enforceable protection which might be granted will be commensurately narrow.
This story emphasises how essential it is to understand how the patent system works and how patent applications may fare during their examination when considering your freedom to operate in your chosen field. Prima facie, these social media articles may form the impression that providing customers with a paper shopping bag could land shopkeepers in patent infringement proceedings with Apple, but with a proper understanding of the patent system and the content of Apple’s patent application, a more realistic conclusion can be reached and practical steps can be taken to mitigate any perceived risk of infringement.
Of course, the more complex a technology and the patent landscape in which it is found the more difficult this assessment becomes and it is here that the professional patent advice in which Dehns specialises becomes invaluable. Should you be interested in freedom to operate advice in any technical field, please do not hesitate to contact one of our attorneys.