The patent was granted
The Patent Office granted him patent no. US6368227B1
For a while, the situation bordered on the absurd: technically, swinging from side to side on a swing could infringe a patent.
The patent existed. It was real. And for a time, strictly speaking, anyone swinging sideways on a public swing could have been infringing an industrial property right.
But what is truly interesting about this case is how much it reveals about the workings of the patent system: its structural limitations, its corrective mechanisms and, above all, the difference between registering a patent and having solid protection with the territorial scope required in each case.
Now, don’t think the system is in chaos; you need to understand what actually happened.
The origins in 2002: a challenge between father and son
Steven Olson was the son of a patent lawyer. His father, as a practical exercise, set him a challenge: invent something. The boy went to the garden, climbed onto the swing and, instead of swinging in the usual direction, began to sway from side to side. The budding inventor discovered something different from what everyone else does: a new way to swing!
Under his father’s guidance, they filed an application with the United States Patent and Trademark Office (USPTO). And the patent was granted under number US6368227B1.
What should have been an educational exercise turned into a case study of the system’s flaws.
Why it was granted:
the limits of the patent examination
To understand how this was possible, one must understand how the patent granting process works. An invention must meet three fundamental requirements to be patentable:
Novelty: the invention must not have been disclosed or used publicly prior to the application. If the prior art demonstrates prior knowledge of it, novelty is ruled out.
Inventive step: the invention must not be obvious to a person skilled in the art. It is not enough that something is not formally registered; if any technician in the sector could have logically deduced it from the prior art, there is insufficient inventive merit.
Industrial application: the invention must be capable of being manufactured or used in some sector of economic activity.
In the case of the swing, swinging sideways was neither new nor inventive. Swings have been in use for centuries, and the ability to move in different directions is inherent to their operation. But the examiner assigned to the case did not find – or did not search deeply enough – documented prior art that would invalidate the patent.
This is where the system’s structural limitation lies: patent examiners review the documentation available in databases, technical literature and previous records. But they cannot possibly find out absolutely everything that exists in the world. In particular, tacit knowledge, undocumented practices and trade secrets which have never been registered, such as the COCA COLA recipe or the VISCOFÁN cellulose casing, lie beyond the examiner’s immediate reach.
The result is that, occasionally, patents are granted that should not have been. The legal presumption of validity that protects industrial property registrations can be challenged in administrative and/or judicial proceedings, but the burden of proof lies with the party contesting the registration.
The correction:
the fact that a patent is granted does not mean it is always valid
This is the point most frequently misunderstood about the patent system, and the one that makes Steven Olson’s case more than just a curiosity.
The grant of a patent is not a definitive judgement on its validity. It is an administrative decision made on the basis of the information available at the time. The system includes mechanisms expressly designed to correct subsequent errors: inter-party opposition proceedings and invalidity actions before the courts.
In this case, when the patent for the swing attracted public attention and was scrutinised more closely, the evidence undermining its validity became glaringly obvious. The patent was invalidated.
This happens more often than one might think. Companies that build defensive or licensing strategies around weak patents may find, at the most inopportune moment, that such protection crumbles as soon as someone decides to challenge it seriously. A granted patent is the beginning of a legal position, not its definitive guarantee.
The underlying lesson:
registering is not always the same as protecting
The Olson case is studied in law schools and industrial property programmes not because of its rarity, but because it clearly illustrates a mistake made by companies of all sizes: confusing the act of registration – of patents, trademarks or designs – with the existence of robust protection.
A filed application and a granted title create a perception of security that can be misleading. The relevant question is not ‘do I have the patent?’, but ‘would this patent survive a serious challenge?’.
A patent is only as strong as the soundness of its technical and legal foundations. A poorly drafted claim may offer far less protection than it appears to. A weak novelty basis may collapse at the first sign of a competitor who conducts a rigorous search for prior art. An insufficiently substantiated inventive step may be challenged in court, where it is reviewed with the assistance of experts.
For a company with a patent portfolio or ongoing R&D projects, this has direct implications for risk management and potential contracts.
Una solicitud presentada y un título concedido generan una percepción de seguridad que puede ser engañosa. La pregunta relevante no es “¿tengo la patente?”, sino “¿esta patente sobreviviría a un ataque serio?”.
Una patente es tan fuerte como la solidez de su fundamentación técnica y jurídica. Una reivindicación mal redactada puede proteger mucho menos de lo que parece. Una base de novedad débil puede derrumbarse ante el primer competidor que decida buscar prior art con rigor. Una actividad inventiva insuficientemente argumentada puede ser cuestionada en sede judicial, que la revisa con asistencia de peritos.
Para una empresa con una cartera de patentes o con proyectos de I+D en curso, esto tiene implicaciones directas en la gestión del riesgo y de posibles contratos.
What distinguishes a weak patent from a defensible patent
The difference between both is not decided at the time of granting, but much earlier: during the application preparation phase. There are essentially four elements that determine the strength of a patent:
- The prior art analysis. An exhaustive search of the prior art, in patent databases, scientific and technical literature, as well as products on the market, is not only the starting point for arguing novelty and inventive step, it also allows us to anticipate the lines of attack a competitor might use to challenge the patent in the future.
- The precise definition of the subject matter of protection, to prevent third parties from circumventing infringement as far as possible. A patent’s claims are its legal core: they define exactly what is protected and what is not. Claims that are too broad are easily challenged on the grounds of lack of merit; claims that are too narrow leave the door open to competitors. Striking the right balance requires both technical expertise and legal judgement.
- The argument regarding inventive step. It is not enough for something to be new; one must demonstrate that it was not obvious. This requires an analysis of the technical problem being solved and why the solution adopted was not the obvious answer for an expert in the field.
- Future defence strategy. A patent is designed not only to be obtained, but to be used: as a licensing asset, as a shield against competitors, and as a bargaining chip in negotiations. This influences how the claims are drafted, in which jurisdictions protection is sought, and when the invention is disclosed.
What this case makes any company reflect upon
Steven Olson’s swing is an extreme example, but the problem it illustrates is an everyday one. Companies that have invested time and resources in developing genuinely innovative technical solutions lose that advantage because the patent application was prepared in haste, with poorly calibrated claims or without a sufficiently rigorous prior analysis.
The patent exists on paper. But when the time comes to enforce it – against a competitor who is copying, in licence negotiations, or during due diligence – it turns out that the protection is more fragile than it seemed.
The question any head of innovation or legal department should ask is not “Have we registered this invention?”, but “Would this patent withstand an attack?”. These are different questions, and the gap between their answers defines the difference between a solid industrial property asset and a document of little strategic value.
The patent system is not infallible, but its corrective mechanisms work. The real risk lies not in the system failing, but in believing that registration alone is sufficient. A well-constructed patent is a lasting competitive advantage. A weak patent is, at best, a worthless piece of paper; at worst, a false sense of security that delays important decisions.
