By David Miller

Modern life is defined by patents—virtually every object with which we interact has been shaped in response to someone’s claim to one technology or another. Nonetheless, patent law is complex and occasionally arcane, so people frequently struggle to understand patents in the context of their favorite devices.

The need for appropriate levels of due diligence seems so obvious, yet many people reach the wrong conclusions based on inadequate due diligence. Your clients might not care about fidget spinners, but the situation might start a conversation between you and your clients.

Spinning out of control

Fidget spinners exploded onto the toy scene early in 2017. This amusement device typically has two or three lobes and a central aperture with a ball bearing installed. Fidgety people supposedly find the toy to be stimulating without being distracting. There was no large marketing campaign for the device, so the inventor and manufacturer have remained obscure. Copycats rushed their versions to market virtually overnight. A fad was born.

In early May, numerous news organizations ran stories about Catherine Hettinger, the down-on-her-luck inventor of the fidget spinner. Time, The Guardian, and the New York Times described Hettinger as the archetypal disillusioned inventor: she bootstrapped the patent, narrowly missed licensing it to a major toy manufacturer, and finally abandoned the patent due to financial stress only to see others selling millions of her toy. If you love rooting for the underdog, her story is compelling. The only problem is that she didn’t actually invent the fidget spinner. The only common elements of Hettinger’s spinner and the popular fidget spinner are “spinning an object in one’s hands”.

The Case for Due Diligence: Go to the source

Once journalists misidentified Hettinger as the inventor of the fidget spinner, the misidentification proliferated on cut-and-paste sites and eventually made it to Youtube. Each article breathlessly describes Hettinger’s misfortune but there are no citations to her patent or comparisons with the various fidget spinners. Hettinger’s patent number is also absent from all the articles, which is surprising given that the articles are about her patent. It appears that the journalists accepted Hettinger as the inventor without any questions.

This silly mistake could have been easily avoided by a cursory review of Hettinger’s patent US5591062A “Spinning toy”, which describes a simple round disk with a dome. There is no mention of holes, lobes, or bearings that you would expect in a fidget spinner. Any non-expert easily sees that the Spinning toy has more in common with a dinner plate.

Your clients may encounter patents in a variety of contexts—remind them that the first step is always to open the source documents and read them. It is true that certain high technologies (i.e., genetic sequences) require an expert to review the source documents; nonetheless, a non-expert review of the source documents can’t hurt and it is probably free. Reviewing the source document will help avoid silly mistakes and it will help you formulate a plan.

The Case for Due Diligence: Careful who you trust

The Wikipedia entry “Fidget spinner” included the first published instance of the incorrect inventor. An anonymous user Charimingco wrote the article in April and made the claim that Hettinger invented the fidget spinner. Just two days later, Charmingco was permanently blocked from Wikipedia because of inappropriate spam and promotional edits in the Fidget spinner entry. The fact that Charmingco was banned does not prove that the entirely of his entry was fabricated; however, it does raise questions about the quality and substance of his conclusions. The journalists that trusted Wikipedia did not realize that they were actually placing their trust in Charmingco, who had his own agenda.

Online resources like Wikipedia often have a veneer of respectability due to extensive editing, beautiful layout, and hyperlinked citations. Is that enough for due diligence in the patent world? No! Wikipedia is informative, but it is not a replacement for original research and due diligence. With that in mind, talk with your clients about your trustworthiness. In a patent context, this should include your formal technical education, work experience, exemplary cases, and unique insights into the client’s technical field. Make the connection between your qualifications and authoritative conclusions. If you use the services of Global Patent Solutions, please ask for bios about the analysts working on your case. Our technical qualifications are the basis of GPS’s leadership in the field of patent search.

The Case for Due Diligence: Do a real search

Hettinger’s actual claim to fame is that she was the first inventor to use the both words fidget and spinner in a patent. Clearly, that is not a big accomplishment. It was enough to trick a bunch of journalists and Wikipedia’s Charmingco. Take a minute and check in Google Patents….there are only three references with both words.

As practitioners, we know that using words is not enough to define an invention. A proper patent search considers the invention itself, while a crappy patent search focus on just the keywords. Although there are many wrinkles in patent searching (such as patents vs. non-patent literature, Boolean vs. semantic searching), any good patent search bears the same hallmarks. As an expert in mechanical engineering patent searching, I would like to walk you through a professional patentability search regarding a fidget spinner.

• First, determine what the search is looking for. I wouldn’t focus the search on fidgeting per se; any handheld device could achieve fidget mitigation even if fidgeting is never addressed. Instead, focus on structure (i.e., lobes and ball-bearings) and usage (i.e., spinning on a finger). Let’s use this definition: a handheld toy with symmetric lobes and a central ball bearing for engagement of the user’s fingertips; the lobes may have apertures for additional amusement.
• Second, translate the invention to a Boolean search string. Boolean logic is the most efficient tool for searching patent databases; semantic or natural language searches are sometimes useful in general NPL databases like Google Scholar. In other words, rather than Googling “fidget spinner”, you’ll want something like this:

(toy* OR amusement w2 device* or play* or fidget*) and (spin* or twist* or balance* or rotat*) w10 (finger* OR fingertip*) and (ball*1bearing*)

• Third, review the search results and repeat until you are satisfied. Each time, refine the search strings to reflect your changing understanding of the invention. This may include patent classifications or foreign language searching. If you go down a rabbit hole and get stuck, just go back to the beginning.

At the conclusion of a proper patent search, you should feel confident that all reasonable references were uncovered. In a patentability situation, due diligence helps you to determine whether a patent should be filed. In litigation, due diligence helps you to determine the most prudent course of action; plaintiffs often want infringement analysis, and defendants want validity analysis. Whatever you need, rely upon the professionals at GPS—don’t leave it to Google and Wikipedia.

Will the real inventor please stand up?

In a very abstract sense, we cannot learn about an inventor that left no witnesses or documentation. In the case of the fidget spinner, my thorough patent search did reveal many fascinating toys with nearly identical structures. Prior art with the multiple lobes and a bearing, such as US20070021027A1, don’t allow for fingertip engagement on both sides of the device. Prior art that engages the user’s fingertips on both sides, such as US3081578A, don’t have the proper lobed shape.

The only toy that can truly be considered a fidget spinner (at least as we defined it) belongs to Scott McCoskery in his Youtube video “Torqbar #2”. (https://www.youtube.com/watch?v=HO7qVPOHvaMt=52s) His device has all of the features that we normally associate with a fidget spinner, including rotationally symmetrical lobes and bearing hubs on both sides. It seems reasonable to give credit to McCoskery as the first person to popularize the device.

However, Mr. McCoskery shouldn’t get too excited about patenting the Torqbar. You see, the purpose of a patentability search is also to consider structurally-similar devices that may be obstacles to patenting. In college, I worked in a metal shop where I first played with flanged pillow blocks; see figure 5 of US8727630B2. The shape and function of this bearing assembly hasn’t changed since the beginning of the Industrial Revolution, and they are awful fun to spin in your hands. Modern fidget spinners are indistinguishable from flanged pillow blocks; the only different is the level of non-patentable decoration.

Due diligence is a critical element of intellectual property; you can leverage a patent search to resolve difficult questions of patentability, validity, and inventorship. The fidget spinner is a schoolyard distraction, and you can use it to educate your clients about performing due diligence. Just remember,

• Review source documents
• Choose trustworthy sources
• Execute a commensurate search