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This is a hypothetical question but of course there may be real-life ramifications.

Hypothesis: Imagine that for centuries, right up to the present day, orchestral conductors had used only their hands to keep the orchestra together and to communicate musical intentions. No-one had thought of using a pointer. (unlikely I know but just for the sake of argument)

Someone comes along in 2023 and, lo and behold, invents something they call a baton. It looks like this:

enter image description here

To everyday folk, this is just a fancy stick. It is simply being used for a new purpose. It has some important features like the handle and being carefully balanced as to weight, but that's all.

Is there anything patentable here?

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  • You can’t patent something that is already known. It’s called prior art.
    – Eric S
    Commented Feb 20, 2023 at 23:54
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    The hypothetical is that no-one has used a baton before. As I said I'm assuming for the purposes of discussion that it is genuinely a new invention. Commented Feb 20, 2023 at 23:56
  • This reminds me of a patent someone filed a number of years ago for a stick - a literal stick, like it just fell off a tree, for the purpose of playing fetch with your dog. Commented Feb 21, 2023 at 14:37
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    @DarrelHoffman: It reminds me of the recent skeptics.SE question about that patent, Did the US Patent Office issue a patent for a stick? - answers and comments there are relevant to this case. Commented Feb 22, 2023 at 3:07
  • @PeterCordes Saw that after I posted here. Guess it was in the back of everybody's minds thanks to John Oliver... Commented Feb 22, 2023 at 14:20

1 Answer 1

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For a device or article of manufacture claim the trick would be to write a claim that did not cover something that existed. If I invented a back scratcher that was structured like a tiny rake and small rakes already existed I couldn’t write a claim that covered the structure of my invention that didn’t also describe the existing rake. My hypothetical backscratcher patent can’t mean people who made tiny rakes can no longer do so.

To make it worse, making something smaller or larger, in itself, doesn’t get around prior art. Of course if miniaturization took special techniques or materials or structures those aspect would be different from just “make it smaller”.

The balancing of a conductor’s baton might be different from what had been previously known for other sticks be and lead to a device patent. But be careful of the principle of inherency. If sticks had been made with that balance but for a different reason or no reason then the prior art would have inherently had the feature and you can’t patent.

However a method claim can patent a method of doing something with existing items that had never been done or thought of doing before.

So a “A method of indicating the tempo of music to a person performing music by waving a generally cylindrical stick having a length, weight and width between (generally define the stick) mimicking the motions of a metronome” might fly if it was new and not obvious even if balanced sticks existed.

Same with the rake/backscratcher. You couldn’t stop people from making and selling tiny rakes but they better not advertise them for backscratching or they may be committing inducement to infringe.

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