Whiteboard: Here's the scoop on patents

If you've ever wanted to patent a homemade invention, Dan and Kim McDonald's experience with the Aardvark is both a cautionary and inspirational tale.

Dan invented the Aardvark, a kitchen strainer in the shape of a tapering, blunt-ended cone, so he could make root beer floats that didn't erupt in a volcano of foam. He named it after the aardvark, or anteater, an odd-looking African animal with a tapering blunt-ended nose. The couple sells the $9.99 strainer through their two-person company, Float Pro LLC, which they run out of their Shoreview home.

While a kitchen strainer might seem too common to be patented, Dan McDonald is a Minneapolis intellectual property attorney and trial lawyer whose skill at obtaining patents is a bit above average. Among other things, he had the legal expertise to argue with the U.S. Patent and Trademark Office when the agency initially was unconvinced the strainer merited a patent.

It wasn't an easy argument because, at least on the surface, McDonald's invention seemed to lack two of the five requirements for obtaining a patent: It didn't appear to be novel (different from what's already known) or to be what patent law calls "nonobvious" (meaning that it breaks new ground instead of just tweaking an invention that already exists).

"The Patent Office rejected some of our claims," McDonald said. "But I convinced them that the Aardvark makes root beer floats in a better way, and that nothing else has this kind of design."

Here's McDonald's breakthrough, developed to quickly provide his five children with root beer floats: Normally, root beer floats are made by putting ice cream in a glass and adding root beer, which generates foam that often overflows the glass. With the Aardvark, the strainer is filled with ice cubes and inserted in the glass. Root beer is cooled by pouring it over the ice cubes and draining it into the glass, a process that removes some of the root beer fizz. When the strainer is removed and ice cream is added to the cooled root beer, less foam is produced.

McDonald also discovered that the strainer could chill white wine. The wine was poured over the strainer full of ice cubes, then the cubes were removed to avoid diluting the wine. The same technique could also protect people with sensitive teeth from contacting ice in chilled drinks. Other uses included rinsing single servings of fruits or vegetables.

"The closest thing the Patent Office found was a minnow bucket," he said.

For his doggedness, McDonald got two U.S. patents, one for utility (usefulness) and one for design (a co-patent with Keith Nybakke, a Twin Cities product designer). Even so it took nearly four years to get the first patent for utility. Another patent application is pending. Separately, the firm has obtained design patents in China and Canada. The Aardvark name is also a registered U.S. trademark.

But, besides having legal expertise, the McDonalds also had financial advantages that many inventors lack.

As a lawyer at the Minneapolis law firm Merchant & Gould, Dan McDonald could afford the expensive patenting process, which cost tens of thousands of dollars by the time he applied for and obtained the patents, and arranged for the Aardvark to be manufactured in China.

He also had ready access to patent experts at low cost. For a minimal fee, a colleague helped McDonald write the patent application, since he was decades out of practice.

"It was kind of a 'bucket list' thing for me to start a little company," he said. "I always hoped I'd come up with something."

Because Float Pro is a privately owned company, the McDonalds will say only that, since the product debuted in May, they've sold between 100 and 1,000 units but haven't yet turned a profit.

But they're expanding. Kim, whose day job is being a volunteer social worker, is in the process of hiring the company's first sales representative. Until now, all sales have been made at community events or through the company's website, aardvarkstrainer.com.

Even though the product hasn't made money, McDonald feels that he's accomplished something.

"I wanted to show my kids that creating things isn't just something that other people do," he said. "And I've gotten a better understanding of what it's like for clients that are going through this."