Monday seems like a good day to start off with a healthy dose of patentese. I’m going to try to post something knitting-patent related once a week — maybe something new, like Knit Klips knitting clips, or stretchy circulars brand needles. We’ll see how faithfully I keep to that schedule.
Today, though, a historical tidbit that’s been sitting on my hard drive for a few years. It has become especially relevant now, though, since Kory Stamper’s article on knitting two socks at once on dpns was published in Knitty. That knitting parlour trick, briefly described in Leo Tolstoy’s War and Peace, is a perfect example for a discussion of prior art and enabling disclosure:
The melancholy silence that followed was broken by the sounds of the children’s voices and laughter from the next room. Evidently some jolly excitement was going on there.
“Finished, finished!” little Natasha’s gleeful yell rose above them all.
Pierre exchanged glances with Countess Mary and Nicholas (Natasha he never lost sight of) and smiled happily.
“That’s delightful music!” said he.
“It means that Anna Makarovna has finished her stocking,” said Countess Mary.
“Oh, I’ll go and see,” said Pierre, jumping up. “You know,” he added, stopping at the door, “why I’m especially fond of that music? It is always the first thing that tells me all is well. When I was driving here today, the nearer I got to the house the more anxious I grew. As I entered the anteroom I heard Andrusha’s peals of laughter and that meant that all was well.”
“I know! I know that feeling,” said Nicholas. “But I mustn’t go there- those stockings are to be a surprise for me.”
Pierre went to the children, and the shouting and laughter grew still louder.
“Come, Anna Makarovna,” Pierre’s voice was heard saying, “come here into the middle of the room and at the word of command, ‘One, two,’ and when I say ‘three’… You stand here, and you in my arms- well now! One, two!…” said Pierre, and a silence followed: “three!” and a rapturously breathless cry of children’s voices filled the room. “Two, two!” they shouted.
This meant two stockings, which by a secret process known only to herself Anna Makarovna used to knit at the same time on the same needles, and which, when they were ready, she always triumphantly drew, one out of the other, in the children’s presence.
War and Peace was first published in Russian in the 1860s. The fact that Tolstoy wrote about two stockings being knit at once suggests that this was a technique handed down in Russia (unless we are to suppose that Tolstoy developed the idea himself), if not Europe, that therefore must have antedated the publication of War and Peace. And
But a patent application for accomplishing Anna’s “secret process” was filed in the United States by Frederich Polle, Louisa Keisker, and Sallie Polle on October 24, 1874; their patent issued as U.S. Patent No. 167,563 on September 7, 1875. If you’d like to read the text and see all the figures of this patent, they’re reproduced below the jump.
Polle et al. describe the rudiments of knitting two layers at once using a technique that we’d call “double knitting” today — the variant with two separate ends of yarn, without exchanging the ends, so that the fabric layers always remain separate. Interestingly, Polle et al. only describe the easier part of working the stockings; if you read through the description, you’ll see that there is no discussion about how to shape toes or heels. The only reference made to shaping stitches is this:
By means of this improvement… uniformity of size is secured without the usual comparing of one article with the other, when dropping or taking up stitches in the act of reducing or increasing the diameter of the knit article.
… yet there is no explanation provided as to how to reduce or increase, although this is the trickiest part of the double-knit sock trick (read the Knitty article to find out how to do this).
On the other hand, Polle et al. go to different extremes: they don’t stop at double knitting; they go on to describe knitting four layers at once!
Thus, in simultaneously knitting four stockings, we cast onto the needle C a stitch from the first yarn, A, then one from the second, B, one from the third, C, one from the fourth, D, until the required number of stitches is set up on the needles. Then, after knitting the first yarn, A, we pass it outside of the needles, where it will always remain during the work. Next, pull up the second yarn, B, from underneath the first, knit it, and pull it down. This yarn will continue to be between the first and second garments throughout the work. Then knit the third yarn, C, reversing the stitch to make the right side of this garment face toward the right sides of the other two, keeping this yarn inside of the needles, where it will always remain, the nearest yarn to the knitter. Next, pull up the fourth yarn, D, from underneath the third, and knit it, reversing the stitch. This yarn should always be kept between the third and fourth garments.
The one claim of Polle et al.’s patent is to “[t]he improvement in the art of knitting two or more garments at the same time upon the same set of needles, the same consisting in setting up on the needles the loops of each garment, so that they alternate one with the other, and in removing them in the same order, substantially as described [in the patent description].” (Today, one would not rely on a single patent claim as breezily worded as this; the rules of claim construction have evolved over time.)
If we assume that it was known to knit two garments, such as socks, at once in the manner described by Polle et al., prior to 1874, and if we assume that this knowledge was not commonly known, but was known by a select bunch of knitters who passed on the technique orally — both of which are assumptions that we are making based only on a passing reference by Tolstoy — then how is it possible for a patent to be granted?
Easy. Early in U.S. patent law history, applications for patent were not examined for novelty; by the time this trio applied for their patent, there was an examination process in place. But even so, there are limits to the patent examiner’s ability and resources. In a field such as knitting, where so much was passed on through oral tradition rather than in writing, it is highly possible that a technique could be publicly known, and publicly shared, yet completely miss the examiner’s notice–particularly because the patent office examination for novelty would be restricted to only printed publications. And even today, although so much is recorded in writing, it’s still entirely possible for a publicly available reference to remain “hidden”, only to be unearthed when a defendant or potential defendant in a patent infringement action starts hunting around for prior art (whether printed or practical) to invalidate the patent.
On the other hand, if we were to assume that there was an actual, printed reference that the examiner could have found in 1874 that disclosed this technique of knitting two articles at once, this would not necessarily leave the applicants without a patent: they did, after all, teach how to knit more than two articles, and arguably figuring out how to do this, and where to put all the working ends of yarn, would not have been anticipated (rendered not novel) by a printed publication restricted to two articles.
War and Peace, by itself, could not have been a prior art reference, even if it had been available in the United States in English to the examiner in 1874: while it described the desired result — two stockings knit at once — it was not an enabling disclosure, because that mere description would not have told the reader, even one skilled in the art of knitting socks, how to carry out the method. It doesn’t lead the reader to the method described by Polle et al.; it’s the difference between Poincar?©’s conjecture and Perelman’s work. (No, I don’t use hyperbole in my analogies. They’re both mind-blowing when you see them, right?)
Polle et al. does teach a skilled reader how to knit multiple layers at once, with sufficient detail so that those who came after (like us) can read it and repeat their steps to arrive at the same result. That is the purpose of the description in a patent: the patentee must provide enough detail so that their invention can be replicated by others, once the patent monopoly expires. You’ll note that Polle et al. assumes a certain level of ability in the reader; there are no instructions about how to cast on, or how to form knit stitches. That assumption of a certain level of skill is fine, because patents aren’t directed to the general public, but rather to a notional addressee who is assumed to have the requisite skill set to understand the description.
Thus, when patents are litigated, expert witnesses are commonly called on to explain to the court just what would be understood by the terminology of the patent. I couldn’t say what the pay would be like in the knitting field because, well, this just doesn’t happen; but in other fields, expert remuneration is far more lucrative than, say, designing and publishing patterns.
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