How a Five-Year-Old Patented "Swinging Sideways", and How the USPTO Took It Back
Few patents have a better origin story than US Patent No. 6,368,227, "Method of swinging on a swing". The named inventor was Steven Olson, a five-year-old boy from St Paul, Minnesota. His father, Peter Olson, is a patent attorney. What followed became a neat lesson in how the patent system corrects itself.
What was claimed
The application was filed on 17 November 2000, and the patent was granted on 9 April 2002. It describes a user sitting on a standard swing, hung by two chains from a horizontal tree branch, who pulls alternately on one chain and then the other, so that the swing moves side to side rather than in the usual back-and-forth arc, which the patent itself admits "has been known for generations". The document treats the subject seriously but with obvious humour. It says the inventor and his sister call the motion "Tarzan" swinging, suggests an optional Tarzan-type yell, notes that "actual jungle forestry is not required", and ends with the line "Licenses are available from the inventor upon request."
Why it was granted
The application read like a real invention, and the examiner apparently did not find written prior art describing that exact way of swinging. That is the weakness the case exposes. Patent examiners search mainly patents and published literature. Everyday activities that every child knows, such as swinging sideways on a swing, are rarely written down in a way an examiner will find.
Why it was cancelled
The patent drew international press coverage. New Scientist, among others, reported on it in April 2002. On 21 May 2002, just weeks after grant, the USPTO Commissioner ordered a reexamination, a procedure for taking a second look at whether a granted patent's claims are valid in light of prior art. The reexamination certificate, issued on 1 July 2003, cancelled all of the claims. The patent later lapsed for non-payment of maintenance fees in 2006.
The lessons
- Grant is not the end of the story. A US patent can be reviewed after grant. Today that can happen through ex parte reexamination or through PTAB proceedings such as inter partes review.
- Prior art does not have to be a patent. Publications, products and public uses can all defeat novelty, but someone has to find them and put them in front of the office.
- Publicity cuts both ways. The attention that made the swing patent famous is also what led to its cancellation.
Indonesia angle
Indonesian patent law also requires an invention to be new compared with what was publicly known before filing, and that prior art is not limited to documents filed with DJKI. Granted Indonesian patents can be challenged after grant, including through an invalidation lawsuit at the Commercial Court. We are not aware of an Indonesian court decision on a patent for a children's game or playground technique. The swing case is still a good reminder for local businesses: if a competitor's patent claims something your industry has been doing in public for years, evidence of that earlier use can matter.
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