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I was listening to a CLE webinar over the weekend on the subject of design patents. The presenters used an apt phrase that I had not heard before: “The Mr. Potato Head rejection.” I’ve heard of a Frankenstein (or Frankenstein’s monster) rejection/argument; but, Mr. Potato Head might capture the idea even better. See these earlier posts on the Frankenstein’s monster rejection: [Link 1] [Link 2].

Interestingly, Hasbro, Inc. actually obtained a patent on a talking Mr. Potato Head. I suppose any rejection they received in the prosecution of that application was by definition a Mr. Potato Head rejection.

In honor of the Mr. Potato Head rejection, the quote for the day comes from the 1950 case of In Re Jennings where the wise judges of the CCPA mashed a five-reference combination of references:

In the instant case individual features seem to have been selected from different of the reference patents and compared with features shown in appellant’s drawings. In other words, it seems to have been held that by selecting features taken from five different patents, that is, one feature from one patent, another from another, etc., a device might be considered which would so closely resemble the drawings of appellant that his design would not be patentable over such possible construction.

We feel constrained to disagree with the concurring conclusions reached by the tribunals of the Patent Office.

In considering patentability of a proposed design the appearance of the design must be viewed as a whole, as shown by the drawing, or drawings, and compared with something in existence — not with something that might be brought into existence by selecting individual features from prior art and combining them, particularly where combining them would require modification of every individual feature, as would be required here.

In re Jennings, 182 F.2d 207, 208, 86 (CCPA 1950).