From pencil sharpeners to a $539m lawsuit: how big tech weaponised patents

Oliver Wainwright
·7 min read
<span>Photograph: RG/AP</span>
Photograph: RG/AP

It was designed to make sharpening a pencil feel as thrilling as flying a jet. A gleaming chrome teardrop, tapered to a point and adorned with a bullet-like handle, Raymond Loewy’s aerodynamic tail-fin pencil sharpener brought the glamour of the machine age to the humble office desk.

As the godfather of American industrial design, Loewy gave his streamlined signature to trains, planes and Coca-Cola vending machines, defining the sleek art deco look of the 1930s. But his go-faster pencil sharpener never made it into production, deemed one chrome-plated, deco-styled step too far. The design does survive in the form of its patent, filed in 1933 and now republished as one of 1,000 such protected inventions, brought together in a new book.

“Design critics trashed Loewy’s sharpener,” says Thomas Rinaldi, author of the Patented: 1,000 Design Patents. “A pencil sharpener doesn’t have to fly through the air, they said, so why make it aerodynamic?” But the design went on to become an icon of the streamlined era. The prototype sold for $85,000 at auction in 2001 and, despite the innumerable designs that Loewy realised throughout his career, it was the phantom pencil sharpener that was chosen to honour him on a celebratory postage stamp in 2011.

Featured among everyday classics like the ring-pull can and the cassette tape, the sharpener is one of a number of designs in the book that never made it off the drawing board. From a flying automobile-cum-helicopter designed in 1959 to the ill-fated Google Glass wearable display of 2011, it seems designers’ ambitions have often been ahead of what is technologically feasible – or practically desirable.

“Sifting through the archives,” says Rinaldi, “it became clear that design patents have often been used as a publicity tool. Someone would design a crazy thing, without having a manufacturer on board, so they could shop it around and get it published in magazines to raise their profile. For a lot of designers, patenting was a vanity exercise.”

Arranged chronologically from 1900 to the present day, one patent per page, the book presents a fascinating cross-section through more than a century of material culture, the simple black and white line drawings reflecting the changing tastes and technologies of the decades. Drawn from around 800,000 designs registered at the US Patent and Trademark Office, the catalogue of objects reflects not only the onset of mass manufacture, the rise of electrical appliances and the later ubiquity of personal electronics, but it also reveals a story of international trade and shifting global power.

We see how US-created designs for cars and appliances were overtaken by innovations from Japan in the 1970s and 80s and, more recently, an influx from China – with a sixfold increase in filings from Chinese companies and inventors over the last decade. On a stylistic level, we see how the rich ornamentation of the 1900s gives way to the streamlining of the 30s, and how the angular forms of the 70s melt into chubby postmodern products of the 80s.

One surprise inclusion, among the scores of gadgets and appliances, is patented building designs – a phenomenon that coincided with the birth of roadside fast-food joints and gas stations, designed like 3D billboards to be easily recognisable from a moving car. Who could resist pulling in to refuel beneath one of Eliot Noyes’ 1966 UFO-like canopies for Mobil (one of which remains on the A6 at Birstall, Leicestershire, safely listed in 2012)?

A section at the front of the book shows the evolution of particular products, which reads like Darwinian natural selection. The mobile phone arrives as an enormous brick in the 70s, before gradually shrinking towards the tiny palm-sized flip-phone of the early 00s, then swelling into vast touch-screen slabs too big for most pockets, before coming full circle and ending with a basic, compact model, with analogue buttons and a small LCD screen – part of a backlash against the always-connected smartphone lifestyle. The food mixer goes through similar convulsions, travelling from industrial-looking machine, through futuristic streamlined forms, and back again, concluding with a retro model patented in 2019 that doesn’t look too far from the first 1927 version.

One thing that remains eerily consistent is the visual style of the patent drawings. When design patents were introduced in the late 19th century, the illustrations had to withstand reproduction at reduced scale in periodically issued gazettes, and the standard has remained the same ever since. Whether depicting the design for a Victorian billiard table or a Pizza Hut restaurant building, a Rolodex card file or a Chinese drone, each item is drawn with the same objective black lines, floating against a white background. Stripped of all context, their very essence distilled, the objects take on an almost totemic quality. Even a novelty pig-shaped clock, with hands emerging from its rear, starts to look like a design classic.

The book also shines a useful spotlight on unsung heroes behind the items we use every day. “I’d never heard of Jean Reinecke before I started this research,” says Rinaldi. “But it turns out he probably designed three quarters of all the tape dispensers you’ve ever touched. Or there’s Ray Patten, an in-house designer at General Electric who designed everything from kitchen timers to locomotives. Or Charles McLeod, who designed dozens of electric clocks.” It was Rinaldi’s own considerable collection of clocks, radios, lamps and other flea-market finds that first prompted him to find out more about the anonymous designers behind these products, beginning the years-long process of whittling down the selection for the book.

UFO influenced &#x002026; Grade II-listed Esso garage in Birstall.
UFO influenced … Grade II-listed Esso garage in Birstall. Photograph: Rui Vieira/PA

He traces the origins of design patents back to the birth of mass production, when industrialised processes of casting, stamping, weaving and cutting enabled objects to be produced at scale for the first time – as well as more easily copied. “Utility patents” had been around since the 1790s, but they regulated how an invention functioned, not how it looked, and proved ill-suited to protecting a new age of designed products.

Introduced in 1842, the US design patent law saw just 14 designs registered in its first year, including a typeface, a bathtub and a “corpse preserver”. By 1930, the patent office was issuing 3,000 design patents a year, and 6,500 by 1941, a figure that wasn’t exceeded until 1989. That number has now mushroomed to around 35,000 – good news for lawyers, but maybe less so for innovators.

The recent boom in design patents has mostly come from the electronics sphere, spurred on by a landmark supreme court case between Apple and Samsung, which began in 2011 and was finally settled in 2018, when Apple was awarded $539m in damages. The case revolved around Apple claiming Samsung had copied numerous elements of the iPhone, from its “bounce-back scrolling” interface to the “rectangular product shape with all four corners uniformly rounded”.

Design patent lawsuits had never seen such vast sums awarded, so the shock ruling sparked an explosion in tech companies racing to patent every last detail of their devices, from the internal components of hardware to the user interface designs displayed on screen. As Florian Müller, intellectual property activist and author of a patents blog, puts it: “The number of patents in a phone is so huge that nobody has ever been able to count.”

The unprecedented ruling unleashed an arms race, with big tech companies amassing vast arsenals of pre-emptive patents, conceived as assets to be sold or traded, as well as providing an insurance policy against any potential litigation. If someone sues you for infringement, you are more likely to be able to countersue for one of the thousands of other patents in your possession.

While providing protection on one hand, this thicket of patents also serves to stifle innovation. As patent law professor Michael A Carrier remarked in response to the Apple ruling: “There’s always the trade-off between litigation and innovation, and in the time these companies spent in the courtroom, they weren’t innovating.”

Still, in centuries to come, at least the inexorable archive of patent drawings will provide a useful insight into the lengths our species went to protect the monetisable details of smartphone packaging and poop emojis.