Historically, inventions whose purpose was illegal or immoral were categorically excluded from patentability on the grounds of non-utility (i.e. failing to satisfy the statutory requirements of 35 U.S.C. 101). For example, gambling machines were held to lack utility until 1977 (Tol-O-Matic, Inc. v. Proma PRodukt-Und Marketing Gesellschaft M.b.H., 945 F.2d 1546, 1552 (Fed. Cir. 1991)). In modern times, while that exclusion still applies to inventions whose sole purpose is committing a crime (e.g., a method of counterfeiting currency), the United States Patent and Trademark Office has abnegated its role of policing inventions for illegality and immorality. Utility is now even found in "deceptive" inventions which were once thought to be immoral (see Juicy Whip, Inc. v. Orange Bang, Inc.,). As the court observed in this case, "[i]t is not at all unusual for a product to be designed to appear to viewers to be something it is not." Examples include imitation diamonds and simulated leather. Even if the practice is deceptive, it is the task of other government agencies, not the Patent Office, to protect consumers from such deception.
Can patent applications be rejected if they promote activities that are illegal or immoral?12/3/2016
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