The Washington PostDemocracy Dies in Darkness

A yoga patent? Here’s why the USPTO approves so many dubious applications.

( <a href="">Jasmine Kaloudis</a> )
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The U.S. Patent and Trademark Office has approved a patent on a technique for videotaping yoga classes. The patent claims the concept of an "image capturing device" being set up in "a studio having a front area and a rear area" and containing an instructor and a "plurality of students." In other words, if you run a yoga class, and you film it using the parameters described in the patent, you may owe royalties to the patent's owner, a company called YogaGlo.

It's a bit of a head-scratcher that this "invention" was granted a patent. A blog post from the Yoga Alliance describes an effort by other yoga instructors to invalidate it by finding prior art: evidence that the "system" described by the patent was in use prior to YogaGlo's invention. The Yoga Alliance says that YogaGlo may have been using its "technology" more than a year before it applied for the patent, which could lead to the patent eventually being invalidated.

But the fact that opponents of the patent had to look for prior art is a sign of just how dysfunctional the rules for approving patents have become. Finding prior art is how you prove that a patent fails the law's novelty requirement: If others were practicing the invention long before you came up with it, it's not patentable. But novelty isn't the only criterion for patent protection. A patent must also claim something that is non-obvious and a "process, machine, manufacture, or composition of matter." YogaGlo seems defective on both counts.

People have been setting up video cameras at the back of rooms for decades, and realizing that you could set up a camera at the back of a yoga studio is hardly a major breakthrough. But the courts have tended to interpret the obviousness requirement narrowly, requiring fairly specific evidence that the idea would have been obvious at the time it was invented. So a concept that would have seemed obvious to most yoga instructors (or, for that matter, most people who own a video camera) was ruled non-obvious by the patent office.

The patent law also requires that a patent cover a "process, machine, manufacture, or composition of matter." While those are broad categories, they're not unlimited. Last year, the U.S. Supreme Court said you couldn't patent medical diagnostic techniques. This year, the court added that you can't patent human genetic code. You also can't patent mathematical algorithms, songs or some methods of financial engineering.

So even without prior art, you might have expected the examiner who received YogaGlo's patent application to have rejected it for being either too obvious or as not being the type of "invention" that's eligible for patent protection. But the culture of the patent office, shaped by decisions of the patent-friendly appeals court that governs patent law, tends to give applicants the benefit of the doubt. The Patent Office is steeped in the culture of the patent bar, which generally sees more patenting as a good thing. And rejecting patents can get examiners bogged down in never-ending arguments with applicants, who have a virtually unlimited opportunity to refile rejected applications.

As a result, the Patent Office routinely grants patents that most people who aren't patent lawyers think are obvious —or not really an "invention" at all. Like setting a video camera up at the back of a yoga studio and pushing "record."