Friday, March 18, 2011

Charlie Sheen's Patent: Not Winning!

Adapted from

Charlie Sheen is one of two named inventors of U.S. 6,283,658 entitled "Chapstick Dispensing Apparatus," which issued in 2001.  The patent is assigned to Masheen, Inc. of Los Angeles.

The word "Chapstick" is a registered trademark of Wyeth, and therefore the patent's title is in violation of MPEP section 608.01 ("The use of a trademark in the title of an application should be avoided").  But that is just the beginning of Mr. Sheen's problems.

The patent claims a lip balm dispenser with a slideable retractable cap, so that one can slide back the cap with a thumb, apply the lip balm, and then slide the cap closed.  There is also a lens to view how much balm remains.  It doesn't seem that novel, but I'll give Charlie the benefit of the doubt.  Maybe he's the first person to invent a retractable cap for a consumer product (ignoring the Pez dispenser for a moment).

But take a look at Claim 1. That final limitation is going to prove extremely problematic.  First, how does the "chapstick dispenser" prevent and relieve chapped lips?  Didn't he mean that the "lip balm" performs this function, and not the dispenser? The claim appears to be inoperative as written. Teknowledge Corp. v. Akamai Technologies, Inc., 2004 WL 2042864 (N.D. Cal. 2004) (Court cannot rewrite claims to reflect what inventor meant to say).

Moreover, how does one prove infringement?  If the accused infringing apparatus "relieves" but doesn't "prevent" chapped lips, that would be a noninfringing use, since Claim 1 requires that the dispenser both  "prevents and relieves chapped lips".

Finally, the claim limitation requires that the dispenser prevent and relieve chapped lips "in a convenient manner." What is a "convenient manner?"  This term is entirely subjective and therefore indefinite. Datamize LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005) (Term "aesthetically pleasing" held indefinite as subjective); Halliburton Energy Servs. v. M-ILLC, 514 F.3d 1244 (Fed. Cir. 2008) (term "fragile gel" indefinite as no upper bound of "fragility").

I'm fairly certain Mr. Sheen has bigger concerns right now than possible 112 issues affecting his patent claim. Still, one would have thought that a "patent lawyer to the stars" might have written him a better claim.


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