Today in Porn: Awesome Legal Edition

Many thanks to the Manhattan Lawyer, who passed along this best-ever legal opinion from The Honorable Richard A. Posner, Circuit Judge, United States Court of Appeals for the Seventh Circuit. It seems there was a scuffle between a couple of manufacturers of…well, take it away, Posner…”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.”

So dry! And bonus points for the use of “perspicuous,” a word that has languished in many an uncracked thesaurus lo, these many years. And it only gets better. The disputed product was, according to the patent holder, a “sexual aid…fabricated of a generally lubricious glass-based material containing an appreciable amount of an oxide of boron to render it lubricious and resistant to heat, chemicals, electricity and bacterial absorptions.”

Posner goes to town: “By ‘lubricious’—a word whose primary meaning, appropriate for a sexual device, is ‘lecherous’—the patent means only ‘slippery,’ which is the secondary meaning of the word. The patent’s use of the word in that sense is confusing, because glass is smooth rather than slippery. But what is meant is that the glass, because it contains oxide of boron, is smoother than soda-lime glass and therefore becomes slippery with less lubricant than a device made out of soda-lime glass.”

At some point prior to this, all parties should have dropped the suit out of the potential embarrassment brought on by making a judge speculate on this or that device’s QLR (Quantity of Lube Required). But no. And so Posner rises to the occasion, and goes to the pertinent research (just imagine the lucky intern who got to go digging on this one):

“That glass has the properties that the patent claims for it, and one can see how those properties (even resistance to electricity, see M. Klintschar, P. Grabuschnigg & A. Beham, Death from Electrocution During Autoerotic Practice: Case Report and Review of the Literature, 19 Am. J. Forensic Med. Pathology 190 (1998)) might enhance the utility of sexual devices made out of it.”

(Good old Klintschar, Grabuschnigg, and Beham. All those jerks who made fun of them at the Medical Research Convention, who asked all those sneering questions about what exactly drives a person to investigate death from electrocution during autoerotic practice – where are they now?)

But getting back to the case in hand. Posner has little use for your “patented” lubricious glass, and cites KSR Int’l Co. vs. Teleflex Inc. to make his point: “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”

If this hasn’t been made into an episode of CSI by Fall sweeps week, somebody’s not doing his job.