The man who invented a color

An article from the BBC recently caught my eye. It promised to be a good read, since it combined a number of my avocations: color, history of science, and patents. The article is entitled "Yves Klein: The man who invented a colour". It did prove to be an interesting read, but my fact-checking proved a bit more interesting, and ultimately shows a error in the article.

Yves Klein in a creative moment

Prior art

Yves Klein invented the color blue??? I know that the claim in the article is just plain bogus. Why? Because I patented the color blue, long before Yves Klein picked up a paintbrush. The patent was granted to me just over 100 years ago. Frankly, the article ticks me off just a bit. They will be hearing from my attorneys.

The original patent on the color blue

Ok... so I am kidding. I wasn't living in New York when this was filed for in 1909. The picture above may contain certain clever Photoshop elements.

Allowing for a bit of artistic license

The title of the BBC article has a little bit of a hyperbole, but an excusable one. Maybe it's just artistic license on the part of the author. Here's the thing: you can't patent a color.

Lemme 'splain. A "color" is an abstract thing... Light which is made up of a great deal of wavelengths enters the eyeball where it is converted into three signals that pass into the brain. We could think of these signals as being hue, value, and chroma. The thing is, until the light enters the eye, all we have is light at a bunch of wavelengths. It isn't "color" until somewhere inside the head.

It's just a combination of wavelengths of light until someone sees it

I am, of course, taking this pretty literally. But, we are talking about patents here. Patents are legal documents and they must be taken literally. On many occasions, I have spent literally hours locked in a room with patent attorneys, quibbling over the exact definitions of a handful of words. It all depends on what the definition of "is" is.

But let's take a definition of color that is closer to the colloquial meaning. If Monsieur Klein was actually granted a patent, a claim might have started out something like this: "A collection of wavelengths of light, wherein said wavelengths of light consist at least in part of wavelengths of light within the visible spectrum, predominantly in the range from 400 nanometers to 500 nanometers, and wherein said collection of wavelengths may be assembled so as to impart a sensation on a human observer, wherein said sensation ..." 

Could this actually be patented? Would a patent examiner grant allowance on a claim like this?

I readily admit that I am not an authority on French patent law from 1960, but I will turn to US patent law, which I also readily admit to not being an authority on. (Note that I reserve the right to pretend to be an expert on whatever subject I care to espouse expertise in.)  The US PTO website says that it is permissible to patent "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof". Since a collection of wavelengths of light does not fit in any of those categories, a "color", defined in those terms, cannot be patented.

An authority on French patent clams

Beyond the fact that a color is not permissible material for a patent, in order to be patentable, an invention must be useful, novel, and not obvious. It seems to me that it might be tough to convince a patent examiner that a collection of wavelengths of light that has a certain property is not obvious. Yves would have needed to convince the examiner that someone of "ordinary skill in the art" would not have thought of that particular collection of wavelengths of light.

So, unless French patent law is considerably different from the US, Yves didn't patent a collection of wavelengths of light, but maybe he invented a composition of matter that has a unique color? Or perhaps a clever process for creating that splendiferous color? 

If I had actually bothered to read the BBC article, I would have found that this was indeed the case: "As early as 1956, while on holiday in Nice, he experimented with a polymer binder to preserve the luminescence and powdery texture of raw yet unstable ultramarine pigment. He would eventually patent his formula as International Klein Blue (IKB) in 1960."

This interpretation is echoed in Philip Ball's book "Bright Earth, Art and the Invention of Color" (p. 248). 

Searching through the patent database

Or so the article and book claim!!!

I spent considerable time with the search engine on the Espacenet website. Not familiar with this website? "Espacenet offers free access to more than 80 million patent documents worldwide, containing information about inventions and technical developments from 1836 to today." This is my go-to website whenever I am looking for some casual reading. 

Two patents from Yves Klein came up in the time period around 1960:

"Method of decorating or architectural integration and products obtained by application of said method"  (FR 1258418)

"Method of decorating or architectural integration and products obtained by application of said method" (FR 77637)

These two patents were both filed in 1960. They may actually be different stages of the same patent, or they may be the same patent, but with different sets of claims. Espacenet offers a machine-generated translation of the second French patent:

"... it consists in coating partly or wholly the body of a or more subjects or models of one or more suitable to the skin colors and to apply, under the direction of a master of works with the benefit of hindsight, the said subjects or on a suitable support or vice versa, Suitable blanks and in that in one or more successive stages or simultaneously, in order to obtain colored marks on said medium." 

In other words, Klein has a patent on a human paintbrush.

Yves made a big splash in the art world around 1960 by splashing unclothed women with blue paint and having them roll on a canvas. If you are not offended by nudity presented in an artful way, French speech, string music, or the color ultramarine, then I suggest you search for "Yves Klein Anthropométrie" on YouTube.

Bloobies

So, I am afraid that I must disagree with the columnist Alastair Cooke of the BBC and with the author Philip Ball. Yves Klein did not have a patent on the color blue, ultramarine, a paint composition, or a process for creating that paint.

Resolution of the conundrum

How did this loathsome rumor about Yves Klein patenting a color start?

The confusion lies in a misunderstanding of a unique French creation, the Soleau envelope. This is a sealed envelope which an inventor sends to a department of the French government. The inventor thus provides proof that he or she thought of a given idea some time before the date that the envelope was delivered.

Note that the envelope is sealed, and stays that way unless a lawsuit comes about. No one at the French patent office peeks into the envelope. And in particular, no one in the French patent office goes through the exercise of deciding whether there is anything novel about whatever happens to be in the sealed envelope. Also, the Soleau envelope does not grant any rights of exclusivity to the one who files. The only legal right offered by the envelope is that the filing party is allowed to continue using the invention even if someone else patents the invention at a later date.

Yves Klein filed a Soleau envelope on May 19, 1960. This envelope contained a formula for making a paint containing ultramarine that preserved the rich color of the raw pigment. The binder called "Rhodopas M" has a good adhesive strength so you could get a good pigment load. It also has a low index of refraction so that the paint has a color closer to the color of the raw pigment.

So, technically, Yves Klein did not patent his shade of Klein Blue, or even a formula for making Klein Blue. I can only surmise why he did not file for a patent, since as we have seen, he was no stranger to the French patent office. Perhaps the paint formulation was not all that novel, since Rhodopas M was already commercially available as a binder? Perhaps Yves didn't file because the real creative work was done by a fellow by the name of Eduoard Adam?  I can only surmise.