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August 6, 2008

Bag Lady, Technologist

In 2006, IBM instituted a "worldwide policy, built on IBM's long-standing practices of high quality patents," disavowing "business methods without technical merit." 7,407,089, granted to IBM, issued yesterday, claims storing customer preference for paper or plastic bags. So, when you go to the supermarket and make your bagging selection, feel assured, whichever way you choose, it has "technical merit."

Posted by Patent Hawk at August 6, 2008 11:39 AM | Patents In Business


So when a check-out clerk who knows me sees my face ("customer identifier") and remembers ("retrieving available container packaging preference information") that I always ask for paper (and he knows it's one of the two choices), and then acts accordingly even without asking me, then he infringes the claim? And (a second question) it wasn't known by others to so behave in this country before the established invention date of the applicant?

37 CFR 10.18:

(b) By presenting to the Office (whether by signing, filing, submitting, or later advocating) any paper, the party presenting such paper, whether a practitioner or non-practitioner, is certifying that -
(2) To the best of the party’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that -
(ii) The claims and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
Violations of any of paragraphs (b)(2)(i) through (iv) of this section are, after notice and reasonable opportunity to respond, subject to such sanctions as deemed appropriate by the Commissioner, or the Commissioner’s designee, which may include, but are not limited to, any combination of -
(1) Holding certain facts to have been established;
(2) Returning papers;
(3) Precluding a party from filing a paper, or presenting or contesting an issue;
(4) Imposing a monetary sanction;
(5) Requiring a terminal disclaimer for the period of the delay; or
(6) Terminating the proceedings in the Patent and Trademark Office.
(d) Any practitioner violating the provisions of this section may also be subject to disciplinary action. See § 10.23(c)(15).

Posted by: NIPRA anonymous at August 6, 2008 12:22 PM

Way back in "Happy Days", when I worked the check-out counter, certain customers had a definite preference for packaging their groceries in discarded grocery cartons, and I was rewarded with a swift kick (or verbal abuse) if I were to forget and open up a paper bag. Who is the person of ordinary skill in the art in this instance? This patent should have been subject to peer review.

Posted by: Joe Breimayer at August 6, 2008 12:39 PM

You are correct, NIPRA anonymous -

The only independent claim does not necessarily involve a computer.

1. A method of determining a customer's packaging preference in a conventional point-of-sale retail location, wherein the point-of-sale retail location includes a person who performs the packaging of items purchased in the point-of-sale retail location for the customer, comprising the steps of: identifying the customer using a customer identifier; and retrieving available container packaging preference information for the purchased items using the customer identifier for the identified customer.

The customer identifier might be the customer's face. And the claimed retrieval might be from the bagger's memory.

Prior to July 20, 2006, the IBM filing date, baggers always asked "paper or plastic?", never able to remember customers or their bagging preferences.

Of course, IBM could swear back, that it had reduced to practice this marvelous invention prior its filing date. There's no telling how far back this incredible customer satisfaction technique goes.

Who says the USPTO hasn't tightened examination, and is now issuing only quality patents? The proof is, pardon the pun, in the bag.

Posted by: Patent Hawk at August 6, 2008 12:47 PM

"Who is the person of ordinary skill in the art in this instance? This patent should have been subject to peer review."

Joe, I think if one needed "peer review" on an application like this one, then there are other much more serious problems than peer-located "prior art" or ascertaining the level of skill in the relevant art which need immediate addressing. Remember, this got through how many pairs of eyes at the PTO, and that much more quickly than most business method applications which don't even hope to have a first action in two years.

This just wasn't a complex case, in terms of issues.

Posted by: NIPRA anonymous at August 6, 2008 1:09 PM

P.S. BTW, Applicant filed an amendment after allowance voluntarily canceling 17 allowed claims, to make those claims a separate apparatus patent which we can look forward to in the future:

"Claims l-9 are pending in this application, with claims 10-26 being cancelled. Claims l0-26 are being cancelled will be the subject of a continuation application in order to place all allowed method claims in one granted patent and all non-method claims in a separate granted patent."

Apparently, in cross-licensing negotiations, you can get more bucks for two patents than for one! (And we wonder why the patent system is in disrepair, and why the backlog increases.)

"12/140,819 filed on 06-17-2008 which is Pending claims the benefit of 11/490,412"

Posted by: NIPRA anonymous at August 6, 2008 1:28 PM

They argued TSM and it worked!

Somebody needed a count I guess.

Posted by: JD at August 6, 2008 1:50 PM

O.K., the Register has done the initial technical analysis:


This clearly shows that "about 1.00533169999 seconds are saved per transaction" using the IBM innovation (and that does not even consider the attendant chit-chat that could be spawned by the seemingly innocuous "Paper or plastic?" question, such as "Are you sure?")

Now the economic analysis:

Assuming three grocery store visits for each average household of 3.86 individuals per week in the U.S., and assuming a median household income of $48,201.00 ($24.10/hr), a national population of 301,139,947, and a national debt of $9.1 trillion:

# of U.S. Households = 301139947/3.86 = 78,015,530

Grocery store visits per week = 78015530*3 = 234,046,591

Time saved per year = 234,046,591*(1.00533169999/3600)*52 = 3,398,720 hours

Money saved in U.S. from this one IBM patent alone = 3,398,720*$24.10 = $81,909,152 per Year!!!

Number of years this patent would need to be practiced to single-handedly eliminate the national debt:

9,100,000,000,000/81,909,151 = only 111,099 years (btw, for all the anti-business-method patent whiners, a twenty-year monopoly, or 0.018% up front, seems like an utterly trivial cost in comparison to this enduring, virtually eternal, benefit).

Thank you, Jon Dudas!! And thank you IBM! Edison never gave US so much return so quickly! (This means Congress can keep spending like there's no tomorrow.)

Posted by: I'm a believer now! at August 8, 2008 4:26 AM