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D’OH – new first zombie case! “vicious zombis” from 1942 patent case

May 24, 2012

So just the other day I noted that Professor Sutherland omitted from her zombie law analysis the first “zombie” case because she started in 1956 and ignored the prior “zombi” cases. But it seems I made a similar mistake and myself missed the first reference, which is “zombis” in 1942 (as opposed to zombi in 1949). The 1942 reference is to invalid patents and is similar to the 1956 case and other future vicious zombie patent cases.

No. 319
130 F.2d 290; 1942 U.S. App. LEXIS 3088; 54 U.S.P.Q. (BNA) 348

Decided – August 14, 1942

Kasarjian’s patent involves spark plugs for use in airplane engines.

The Court decided:

Since there is no infringement even if the patent be valid, we do not decide the question of validity.

Judge Frank in his concurring opinion concludes:

Consequently, if we must here choose between deciding that the patent is not valid or is not infringed – a choice I think we are not required to make – our choice should be the former. By such a choice, we will do no harm to the patent system. It is under fire today, and may not survive attack unless its major abuses are removed. Among such abuses is the persistence of cancerous “spurious” patents. To shift the metaphor, they are vicious Zombis. Their attacks on the public interest bring the patent system into disrepute.

This discovery is somewhat upsetting to me because I had enjoyed the idea that the first zombie case was the 1949 case related to Major League Baseball; it is not. This 1942 reference is still interesting because it links the zombie metaphor to cancer (See generally, Susan Sontag‘s “Illness as Metaphor“). Here the zombie patents are a cancer on innovation.

I wonder how many other cases I might be missing…

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