A friend asked me to look at an application. I have serious concern about one part of the claim and its effect on the enforceability of any patent that may result.
As a hypothetical, let's say it's like this:
1. A clawfoot bathtub comprising <limitation>, <limitation>, and <limitation>, attached to a floor, the floor having joists spaced at most eight inches apart.
To me, this makes it impossible to claim direct infringement against any manufacturer making the bathtub, because the floor is not part of the product being sold, and there is no way to ensure that the tub will ever be physically attached to a floor, nor whether the floor isn't a concrete slab, nor whether the floor has joists spaced as required.
Am I right? Valid concern? Anyone ever seen a patent with claims written in such a way?? What problems are likely to occur during prosecution? Would an examiner need to find a bathtub patent that recites floor construction, or just a patent reciting floor construction that would then be brought in via a 103 with a bathtub patent?
I have some other concerns with how it was written, but this . . . I just don't know what the drafting attorney was thinking.