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September 14, 2006

Heated Pads

Keith Whittle & Theo Cummings were Cincinnati chums. Theo, a patent attorney, helped Keith, gratis, get his patent for body protective pads, with optional heating, used for sports & construction work. As a result, Keith got 6,588,019. But the patent Keith got wasn't all that he expected, and he got sore about it.

Keith is now suing Theo. What does Theo think? "Keith is an idiot."

Keith says Theo told him that "activatable heating zones" were part of the patent, but they're not in the claims, which are skimpy.

Keith & Theo burned the midnight oil together getting the application ready. "After I wrote the application I gave it to him to read." Theo said about the prosecution process, "He was completely exposed to it, and had the opportunity to read and review it at all points."

Proctor & Gamble sells a heated pad just like Keith thought he had gotten a patent for. Keith is also suing P&G. Theo used to work for P&G. Is that a fishy smell?

Keith has a tough road to hoe. P&G has 6,019,782, for "disposable thermal body pads," filed on December 3, 1997. Keith's patent was filed September 3, 1998. Oops.

Theo snorts, "Procter & Gamble has one of the most competent and vicious legal departments that any U.S. company has ever created. He's going to get eaten alive." Theo may have a point.

Posted by Patent Hawk at September 14, 2006 6:28 PM | Patents In Business


Whittle filed his lawsuit against Proctor & Gamble and Theodore and Tracy Cummings three days ago on September 12, 2006 in the U.S. District Court, Southern District of Ohio (Dayton) (http://www.ohsd.uscourts.gov/). The case number is 3:06CV00280. Apparently, this Whittle guy appears to be suing them for patent infringement under foreign trademark registration statute 15 USC 1126. He is serious as he paid the $350 filing fee. Would someone post a copy of the complaint so we can see what is really going on?

Posted by: Reed Deriter at September 15, 2006 7:52 AM

So why is Whittle suing Tracy Cummings? What is this Whittle guy after?

P&G has 6,019,782, for "disposable thermal body pads," filed on December 3, 1997. Keith's patent was filed September 3, 1998. Oops. P&G's 6,019,782 is a continuation-in-part of application Ser. No. 08/777,856, filed Dec. 31, 1996. Double Oops!

Does Whittle have any relationship with Theodore? With Tracy? With ... Proctor & Gamble?

Posted by: Evern Thompson at September 15, 2006 2:35 PM

Theodore Cummings, a Cincinnati patent attorney, is married to Tracy Cummings. Theodore worked for Proctor & Gamble from June of 1993 until July of 1995, but not in the part of P&G related to the technology at issue. As explained in the blog entry, Theo and Keith were close friends when this started.

There are a few ways to view Keith Whittle's suit; one is as anger therapy for Keith. Another, if Keith's complaint has merit, was that he was misled.

My source for the story was IP Law 360. Sorry, I don't have a copy of the complaint - Southern District of Ohio, case 06-00280.

Posted by: Patent Hawk at September 15, 2006 3:00 PM

Apparently, http://ip.law360.com/ picked up the story from http://portfoliomedia.com/ According to the story, Cummings (who now works at GE), worked for P&G from June 1993 to July 1995, but not in the part of the company that dealt with the products and technology at issue in the suit. On Dec. 31, 1996, a year and a half after Cummnigs left P&G, P&G filed a patent applicatiion that gives priority to P&G's U.S. 6,019,782 "disposable thermal body pads." On September 3, 1998, two years after P&G filed its patent application and three years after Cummings left P&G, Keith F. Whittle, Jr. filed an application leading to 6,588,019. Cummings, Whittle's friend, helped Whittle with the application at Cummings' home without a written fee agreement and without receiving a fee. Whittle's patent issued on July 8, 2003. More than three years go by from July 8, 2003 and then Whittle decides to sue his good friend, his good friend's wife, and a company known for protecting it's products with patents.

The title of Whittle's invention "Impact structure for the absorption of impact forces to the body" says nothing about heat. Did Whittle even read the title to his invention? The part about "activatable heating zones" was added only to the summary section of Whittle's patent, perhaps as an after thought. The activatable heating zones is said to activate upon impact, but how? Whittle didn't provide any explaination. I guess the argument may be that the activatable heating zones will activate upon impact however P&G's product works. During the two years after Whittle's patent issued, Whittle could have sought reissue of his patent but chose not to. Whittle's 2003 claims do not cover P&G's 1996 heat delivery system to football pads. I hope the attorney Whittle hired is charging an hourly rate and a heafty one at that.

Posted by: Avery Tempkins at September 16, 2006 10:09 AM