The Law of Glass Dildos

Judge Richard Posner

Judge Richard Posner

Judges get to decide all kinds of stuff.  Last week a high court in England decided whether Pringles are potato chips.  They are.  Last month the Federal Circuit Court of Appeals got to decide a case about sex toys.

Really.

Before I begin, I should tell you that Richard Posner of the 7th Circuit wrote the opinion.  From time to time, federal appellate court judges travel to circuits other than their own to sit on cases.  Often they take their families.  Often they do some work in return for a vacation.  That is never true for Judge Posner.  He never takes a vacation. Empirical and scientific studies have shown that Judge Posner is not possible.  No human being could write as much as he has written.  It is scientifically impossible. Only a droid which does not need sleep could write that much.

Anyway, there he was, sitting by designation in a case involving sex toys in Washington, D.C.  At issue was whether a glass dildo was entitled to patent protection.

Really.

Yes.  It is what you think it is.

Yes. It is what you think it is.

Glass, you see, isn’t just glass.  Some glass is slipperier than other glass.  And, if you own a glass dildo and intend on using it, it needs to be as slippery as possible.

Steven Ritchies sued Vast Resources, Inc. for patent infringement and won in the lower court.  (That would never do.  A corporation called “Vast Resources” will have to win, the only question is how Judge Posner will get there.)  The issue was the kind of glass that Vast Resources used in its glass dildos.  Apparently there is a market for such things or no one would be making them.  I’ve never seen one at my local supermarket though.

Before Mr. Ritchie came along, glass dildos were manufactured with soda-lime glass.  Vast Resources no doubt used it in their dildos.  Mr. Ritchie and his company — “Know Mind Enterprises”, and whether that is a pun or not is anybody’s guess — got a patent from the United States government for a glass dildo using borosilicate glass. That patent is for “[a] sexual aid…fabricated of a generally lubricious glass-based material containing an appreciable amount of an oxide of boron to render it lubricious.”

Really.

Judge Posner can’t let that go by.  What judge could?  “By “lubricious”—a word whose primary meaning, appropriate for a sexual device, is “lecherous”—the patent means only “slippery,” which is the secondary meaning of the word.”

Basically, glass made with boron is slipperier than glass made with soda-lime because it is smoother.  That is a good thing for a “sexual device” because the boron glass needs less lubricant to do its work.  Whatever that is. If anyone knows, write me.

By the way, as Judge Posner explains in the decision, we shouldn’t call dildos and their kin sex toys, “A more perspicuous term is “sexual devices,” by analogy to “medical devices.” The analogy lies in the fact that, like many medical devices (thermometers for example), what we are calling sexual devices are intended to be inserted into bodily orifices, albeit for a different purpose.”

Really.

Roman Glass Dildo at University College London ca. 1st Century, BCE

Roman Glass Dildo at University College London ca. 1st Century, BCE

The problem for Mr. Ritchie, other than the fact that he sued Vast Resources, Inc. and therefore must lose, is that borosilicate glass was invented in 1893 and the Corning Glass Company almost immediately began using it to manufacture its Pyrex glassware.  (I can buy that in my supermarket.) Worse, the ancient Romans made glass phalluses 2000 years ago.  What kind of glass they used for dildos does not appear.

Now we get to the part about why Vast Resources gets to win.  An invention is not patentable if it is “obvious.” Since borosilicate glass is a standard glass with well-known properties, “to experiment with substituting borosilicate glass for ordinary glass in a sexual device was not a venture into the unknown.”

So, even though it took more than a century for someone to put borosilicate glass in a dildo, Mr. Ritchie lost to Vast Resources. But at least now you know to ask what kind of glass is in that dildo you’re thinking about buying.

Really.

_____________________________
For those of you of little faith who think I make this stuff up, you can read Judge Posner’s opinion right here.

_____________________________

UPDATE

The Supreme Court refused to hear an appeal from this decision.

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