HISTORIC ZOMBIES: First “Zombies” in Federal Court: the Zombie or Scarecrow Patent
The first instance of “zombies” in a U.S. Federal Court opinion was in 1956 referring to legal slang for patents “so clearly void that a mere reading thereof requires a judicial declaration of invalidity as matter of law”.
Opinion by Judge Fee reversing the lower Court and finding that the patent (for supermarket statistical accounting forms) was not a zombie patent:
Contrary to the judgment, there was substantial evidence of a valid grant of letters patent. It has always been held that HN3Go to this Headnote in the case.the action of the administrative body designated as the ‘Patent Office,’ in issuing a patent as agent of the sovereign, carries with it a presumption of validity. This is still the law. It is uncontrovertible that this presumption, owing to shifts of the sands of doctrine, is now infinitely weaker than that which attends findings of other administrative bodies. Because of a number of foolish and unfounded grants in the past, it is sound judicial theory that some patents are so clearly void that a mere reading thereof requires a judicial declaration of invalidity as matter of law. See Judge Chambers’ opinion in Syracuse v. Paris, 9 Cir., 234 F.2d 65. Such letters are vulgarly dubbed ‘zombies’ or ‘scarecrows.’ But the instant grant to Hansen could not be so characterized. The Court of Customs and Patent Appeals had said in ruling upon the application for these identical letters:
“Reversed and remanded for further proceedings in accordance with this opinion.”
See also a 2009 post by Dr. Squid’s Smorgasbord of Terror showing this picture:
“Joe went shopping at Safeway in his zombie make-up.”: