Patenting Holes – And the Story of an Early Marketing Scheme

201704 LM Standard Model AThomas A. Edison was issued U.S. Patent No. 200,521 on February 19, 1878 for a phonograph, just one of more than 1,000 patents he was granted for his inventions. Edison’s invention of the phonograph was the result of his tinkering with telegraph transmission. Edison discovered that the human voice and other sounds could cause vibration in a plate and needle arrangement, allowing the needle to indent the plate in a way that recorded the sound. Another needle could then play the sounds back when traversing the indentations. Edison’s company went on to build cylindrical phonographs, and later flat disc phonographs.  Interestingly, the term phonograph was specific to machines made by Edison, with the term “talking machine” being the generic equivalent.  Later, as the Victor Talking Machine Company’s Victrolas became popular with their concealed horns, the term Victrola became popular for the record players of the day.


Early flat disc records1 played at a speed of about 78 revolutions per minute.  78 rpm records were commonly produced in 10 inch and 12 inch diameter.  In the early 1900’s, most records were recorded at between 78-80 rpm.  Small variations in recording speed often made old records sound a bit distorted. In 1925, 78.26 rpm was chosen as a standard, as this speed was easily achieved with a standard 3600 rpm electric motor and a 46 tooth reduction gear.  The math is simple – 3600/46 = 78.26.

Early records were commonly made from a shellac resin, making them brittle. In World War II, when shellac was scarce, records began to be cut from vinyl. Although vinyl records were almost always black, they didn’t have to be.  If you are old enough to remember record albums, you may also remember some colored vinyl records.2 As early as the 1920’s, Vocalion records used a red-brown vinyl as a marketing ploy, claiming that their records were superior to the black ones.  If nothing else, in a market where record sleeves were all white, their colored records stood out from the crowd.

TRIVIA QUESTION – How many grooves does a 78 rpm record have per side?3

The Standard Disc Record

In 1901 the Standard Talking Machine Company was created to sell, well, non-standard records to the American public. The Standard Talking Machine Company was part of a group of Chicago based companies, and essentially drilled out and relabeled existing Columbia records.  This Chicago based company produced phonographs that had a spindle size of 9/16 inch, larger than the industry standard.  This oversized spindle required the purchase of special proprietary records that had oversized holes.  The Standard Talking Machines were given away “free” once a customer collected enough coupons that were given out with each purchase of other goods (think S&H Green Stamps).  So marketing schemes didn’t start with inkjet printers or shoppers’ club cards.  And this particular scheme worked well, with sales of Standard Disc Records far exceeding those of other record labels at the time. Of course as time progressed, other companies came up with their own “proprietary” spindle size, but the Standard Talking Machine Company appears to have been the first and most successful, with Standard Disc Records and Standard Talking Machines still fairly common in antique shops, collectors homes, and eBay.  The non-standard hole size in their records was never patented, and with good reason.201704 LM Standard Disc Record

 Patent Claims and Empty Space

While the wording of patent claims is in a class by itself, those words, each and every one of them, are of paramount importance. A claim, by definition, can only be one sentence.  So essentially you are defining your invention with a single sentence.  Claim language is not only highly specialized and unique to the field of patent law, but it is very structural.   A claim defines the structural elements of your invention and how they are inter-related.  So when it comes to language that defines a void or a space, like a hole, an aperture, a gap, an orifice, a groove or a cavity, it is a commonly accepted practice to not claim the hole, but instead to claim the structure around the hole that makes up the hole.

 Negative Limitations

Negative limitations are typically not welcome in claim language. “Every color except yellow and blue…”, “a connecting rod that is not cylindrical…”, are examples of negative limitations.  Such language does not define what the invention is, but rather, defines what it is not.  So negative limitations in claims tend to be indefinite, and often get rejected.  A key patent statute4 states, “Claims must particularly point out and distinctly claim the invention.”  Holes and other empty spaces have somehow fallen into this same category over the years.  Yet a quick search for the word “hole” in patent claims shows that there are nearly a half million issued patents from 1975 to present that use the word hole or holes in their claims. This does not consider other equivalent words that define an empty space.  The current view of the courts, however, is that there is nothing inherently ambiguous or uncertain about a negative limitation.5

Holes in the 21st Century

So what’s going on? Have holes somehow evolved in the field of patent law?  While we can’t point to any one event that has made the USPTO more tolerant of holes in patent claims, we think the way in which the holes are claimed in relation to other parts of the invention has a bearing on their acceptance.  While it is true that holes are not void of material (most holes are made of air, or perhaps another substance like water, nitrogen, etc.), they are nonetheless one of those forbidden words that are often avoided.  Instead of claiming the hole, claim the surrounding structure and recite the hole as a product of the positive structure around it.  So perhaps those half million issued patents that recite holes in their claims have enough inter-related structure to satisfy even the most picky examiners.

So the non-standard hole in Standard Disc Records was never patented – in part because it was just a hole, and not only were holes in flat disc records obvious at the time, they were also considered subject matter that was not to be claimed.


1 An analog sound storage device, remembered by those of a certain age.

2 Examples include The Doors in red vinyl, Electric Light Orchestra (ELO) Out of the Blue, and the Beatles White Album, all in special limited edition color.

3 Trivia Answer: A single groove

4 MPEP §2173, 35 U.S.C. §112(b)

5 MPEP §2173.05(i)

Authors Robert D. Gunderman P.E. (Patent Technologies, LLC and John M. Hammond P.E. (Patent Innovations, LLC are both registered patent agents and licensed professional engineers.  Copyright 2017 Robert Gunderman, Jr. and John Hammond.

Note: This short article is intended only to provide cursory background information, and is not intended to be legal advice.  No client relationship with the authors is in any way established by this article.

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