by Audrey Millemann

The holidays are upon us. Given that everything seems to be protected by intellectual property rights, maybe someone should protect Christmas!

Could Santa Claus patent Christmas? Well, as a result of the America Invents Act (“AIA”), enacted in September 2011, the United States switches from a “first to invent” to a “first inventor to file” patent system effective March 16, 2013. U.S. patent law will now be more consistent with the patent laws of the rest of the world, although U.S. law still provides a one-year grace period in which a patent application can be filed after certain types of public disclosures by the inventor, while most foreign laws require absolute secrecy before filing. 

So, maybe Santa Claus could file a patent application if he was the first to invent something that has not been publicly disclosed in the last year. If he filed the application before March 16, 2013, the application would be governed by the old patent laws. If he filed it after March 16, 2013, it would be governed by the AIA and Santa would have to be the first inventor to file an application for that invention. Of course, there may be no other inventors competing with Santa so it might not be much of a problem.  And, as to public disclosures, that should not be a problem since Santa has been operating in secret for hundreds of years.

Santa might be able to patent the whole concept of Christmas (delivering gifts to every child all around the world on Christmas Eve). This method might be a business method, even though it is not really a “business”). Remember, Santa is the true inventor of this method, so no one else can patent Christmas! 

What other kinds of Christmas inventions could someone patent? A search of the United States Patent and Trademark Office’s database lists 979 U.S. patents with the word “Christmas” in the title. They cover items like Christmas lights, decorations, Christmas tree stands and turntables, antler apparatus, Christmas tree watering devices, fire extinguishers, and, my personal favorite, “Apparatus to Prevent Pets Climbing a Christmas Tree.” The need for this invention is obvious if you have ever had kittens or cats around your Christmas tree. As the patent states, “as is generally well known in the prior art, pets, such as cats, like to climb up the branches of a Christmas tree. Oftentimes this will result in knocking some of the ornaments off such tree. These ornaments may be broken…” The invention is basically a giant circular screen that clips under the lowest branches of the tree. Based on my experience, however, this device will have precisely the opposite effect. Any cat that sees it will climb or jump onto it. And, actually, who really wants to stop cats from climbing Christmas trees? It’s too much fun to watch them perched on the branches and swatting ornaments (and to see their embarrassed looks when they land clumsily on the floor)! 

What about a new type of Christmas tree? Trees (and all plants) are patentable as utility patents. The tree must be new and developed by humans, not discovered in nature. 

How about a new nose for Rudolph — one that allows Santa to turn it on remotely from the sleigh? The nose could be patentable, as could the software to run it. 

New designs for Christmas stockings and ornaments? The designs for these objects (not the objects themselves) are patentable as design patents. A design patent offers less protection than a utility patent and has a shorter duration, but it does protect against designs that are substantially the same as the patented design. 

Maybe Santa could protect his favorite phrase “Ho, Ho, Ho!” or his red suit. The phrase could be trademarked, just as business names and logos, as long as Santa was the first to use it. The red suit might be protectable as a trademark or possibly as trade dress, or more likely as a design patent. Unlike a patent that expires, however, a trademark has the advantage of lasting indefinitely.

And what about your favorite Christmas carol? The traditional carols are in the public domain, but any new song (lyrics and music) is protected by copyright as soon as it is fixed in a tangible medium. Unlike a trademark, copyright protection only lasts for the life of the author plus a specific number of years. 

How about Christmas cookies? Or that special eggnog recipe? Recipes can be protected and are usually best protected as trade secrets, provided that they are not easily reverse engineered. Think how long Coca-Cola has been around, and it’s still a secret. 

Now that we have thought about obtaining intellectual property rights for Christmas, maybe we should consider obtaining rights to Hanukkah. But then, I wonder, why would anyone want to create property rights in either Christmas or Hanukkah? These holidays are about the spirit of giving and sharing, not about excluding others.

So, have a wonderful holiday season and may the New Year be filled with peace and joy!