It’s an exciting day here at ATL when we can find three excuses to cover the salacious beat (see #1 and #2). Judge Richard Posner brings us our third opportunity.

Judge Posner issued a ruling [PDF] Friday in a patent infringement case involving “sex aids” companies. Posner brings his dry humor and excellent wit to the decision, starting off by defining the nature of the business the plaintiff and the defendant are in:

Both firms produce what the parties call “sex aids” but are colloquially referred to as “sex toys.” A more perspicuous term is “sexual devices,” by analogy to “medical devices.” The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.

Never before has patent infringement been so sexy… and sex toys so un-sexy:

The devices are generally in the shape of rods of various curvatures and are made out of rubber, plastic, glass, or some combination of these materials. Until the plaintiffs began manufacturing their patented sexual devices, glass sexual devices were made out of soda-lime glass, the most common form of glass.

We are not as well-versed in the nature of sex toys as is Judge Posner. We didn’t realize there were such things as glass dildos — despite the presence of this commenter in our threads — but apparently there are, and they have been around for a long time. The plaintiffs in Ritchie (Know Mind Enterprises/Topco) v. Vast Resources Inc. claimed to innovate the glass dildo design, obtaining a patent for those made with borosilicate glass (the stuff used by Pyrex). Adding silica makes the devices “slippery,” “lubricious,” and “resistant to heat, chemicals, electricity and bacterial absorptions.” While we like chemistry in bed, electricity might be a bit much.

Ritchie sued Vast Resources for violating its patent, and making their own slippery glass rods. The Seventh Circuit, in Judge Posner’s opinion, reversed the lower court’s decision in the plaintiff’s favor, ruling that Pyrexing sex devices is not patentable. It’s an “obvious” invention, an example of “modest, routine, everyday, incremental improvements of an existing product or process that confer commercial value… but do not involve sufficient inventiveness to merit patent protection.”

Posner is a judge on the Seventh Circuit but sat on this Federal Circuit case by designation. Like us, Posner likes writing on salacious topics. After all, having penned the book Sex and Reason in 1992, Posner is a judicial sexpert.

Decision [Federal Circuit]
Slippery Sex Toys Aren’t Inventive, U.S. Court Says [Bloomberg]
Slick Glass Dildos are an “Obvious” Improvement! [The Legal Satyricon]
Judge Posner at the Federal Circuit: Patent on Sex Aid is Obvious [Patent Law Blog]

* Mississippi Circuit Judge Bobby Delaughter, known for prosecuting a white supremacist, pleaded not guilty. He was accused of ruling in favor of Tobacco attorney Dickie Scruggs (Trent Lott’s brother in law) in exchange for a seat on the federal bench. [The Associated Press]

* Damn, I miss the 90’s (and not just because I loved Pauly Shore movies). yesterday. [Bloomberg]

* Will there be more? Yes. $*%&$. [The National Law Journal]

* Meanwhile — two Pennsylvania judges were caught getting $2.6 million in kick backs for sending innocent teenagers to two private juvenile detention facilities. [Reuters]

* A special federal court of three judges or “special masters” (is this a video game?) decided that the measles-mumps-rubella vaccine does not cause autism. [Los Angeles Times]

*Madoff’s defense attorney Ira Sorkin may have a conflict of interest because his parents invested with Madoff. [Bloomberg]

* A “court” upheld the government’s authority to tap international phone calls and emails without a warrant. [The Washington Post]

* Would-be Attorney General Eric Holder’s confirmation hearing went well yesterday, and he will go for more today. [The Associated Press]

* Marc Dreier, the lawyer who sold hedge funds phony investments, wants to be released on bail. [Reuters]

* The Senate released the second portion of the bailout fund yesterday, giving Obama a tidy $350 billion to get the economy back on track. [The New York Times]

* In an effort to rally lending, President-elect Obama’s advisors are considering drastic proposals that would take toxic assets of bank balance sheets. [Bloomberg]

On Tuesday, the Supreme Court heard oral argument in the case of KSR International v. Teleflex. Here’s our quick-and-dirty summary of the proceedings.

Subject Matter / Question Presented: To qualify for patent protection, an invention must be novel, useful, and not “obvious” to a person of “ordinary skill” in the field. So how do you determine “obviousness” when you have an invention that combines already-existing products? And is the Federal Circuit’s three-part “teaching-suggestion-motivation” test for obviousness a bunch of moronic nonsense?

Money Quote(s):

From the NYT:

When [veteran SCOTUS litigator Tom] Goldstein noted that “every single major patent bar association in the country has filed on our side,” the chief justice interjected: “Well, which way does that cut? That just indicates that this is profitable for the patent bar.” And when Mr. Goldstein referred to experts who had testified that the Teleflex patent was not obvious, the chief justice asked: “Who do you get to be an expert to tell you something’s not obvious? I mean, the least insightful person you can find?”

From the Legal Times:

“Three imponderable nouns,” is how Justice Antonin Scalia dismissed the test, also calling it “gobbledygook” for good measure.

Likely Outcome: The Federal Circuit will probably get benchslapped by the SCOTUS. As Tony Mauro notes:

[W]hen Justice Stephen Breyer said he had read the briefs in the case “15 times” and still could not understand the “motivation” prong of the test, Scalia chimed in, “Like Justice Breyer, I don’t understand.”

The implied message to the Federal Circuit seemed to be: If two of the brainier justices on the Supreme Court don’t have a clue what you are talking about, a new test might be in order.

For those of you looking for a substantive, eyewitness account of the argument, we reprint below the report of Joseph (Jay) R. DelMaster, Jr., a partner at Drinker Biddle & Reath in Washington. His account includes advice about how to proceed in patent prosecutions while we await the Supreme Court’s decision.

Check it out, after the jump.

* Justice Department lawyers have lost their Federal Circuit appeal in their long-running class action suit for overtime pay. Mama, don’t let your babies grow up to be DOJ attorneys. [Washington Post]

* The Ninth Circuit has ruled against a freelance journalist and blogger who refused to testify to a grand jury or turn over video footage he took of a violent protest at last summer’s G8 summit. The journalist, Josh Wolf, will seek an en banc rehearing. [New York Times]

* The latest news in Spitzer v. Grasso: Dick Grasso’s looking for a new judge, baby, a new judge. Eliot Spitzer is looking for a way to make his eyes look less beady. [Wall Street Journal via WSJ Law Blog]

* The fellow we mentioned yesterday, who had sex with his 14-year-old sister, has lost his suit to keep his identity off Virginia’s online sex offender registry. [Washington Post via How Appealing]

* Not directly related to the law, but interesting: Harvard University is ending its early admissions program next year. (And it has an indirect connection to the law, insofar as it might affect the educational paths of future lawyers.) [Wall Street Journal]