April 24 (Bloomberg) -- A sex toy made from a material similar to Corning Inc.’s Pyrex to make it “slippery” and “lubricious” isn’t all that inventive, a U.S. appeals court said today, throwing out a patent on the devices.

The court ruled on a dispute between two makers of sexual aids over the material in the toys. Traditional glass sex toys use soda-lime, the more common form of glass. Floridians Steven D. Ritchie and H. David Reynard, owners of Know Mind Enterprises, developed a rod-like device that used a “lubricious glass-based material” with boron oxide to make it resistant to electricity and bacteria and requiring less lubrication.

In rejecting the patent, the U.S. Court of Appeals for the Federal Circuit said the material, known as borosilicate, has been around since Corning first started making Pyrex dishes in 1893, and using the material for sex toys is just a variation of that.

“To experiment with substituting borosilicate glass for ordinary glass in a sexual device was not a venture into the unknown,” U.S. Circuit Judge Richard Posner wrote for a three- judge panel in Washington.

In 2006, Ritchie and Reynard sued rival Vast Resources Inc., which sells sex aids under the name Topco Sales, accusing it of infringing the patent. A federal judge in Tampa agreed and ordered Topco to stop selling the devices.

Not Enough Evidence

The judge didn’t award damages because the men failed to provide enough evidence to establish what a reasonable royalty would be on the use of the invention. Topco had sold some $700,000 worth of toys but it was unclear how many units were sold or what the appropriate royalty would be, the court said.

The men appealed the damage award after Vast Resources challenged the patent. The Federal Circuit didn’t address that issue since it invalidated the patent.

Patent lawyer Edward Dutkiewicz, who represented the men, said his clients may ask the court to reconsider its ruling.

“Sex toys have been around forever -- the ancient Romans used glass -- but no one ever thought of using Pyrex,” Dutkiewicz said in a telephone interview. “Borosilicate has been around 100 years and no one used it for sex toys.”

More Offerings

When Ritchie and Reynard first began selling their toys at sex shows in 1999, they were the only ones selling glass sex toys made from borosilicate, he said. Now, up to a third of vendors have such offerings and a search on the Internet would result in a half-million Web site results, he said.

Michael Harris, the lawyer for Vast Resources, said Topco is among the top five sellers of sex toys in the U.S. while Know Mind only sells its products on the Internet and at shows. Both companies make their glass toys in China.

“When you think of what Pyrex does -- making glass hard and resistant to cracking -- putting it into a sex toy was obvious,” Harris said.

Posner, who wrote today’s opinion, normally presides on the 7th U.S. Circuit Court of Appeals in Chicago and was a visiting judge with the Federal Circuit, which specializes in patent law. He wrote “Sex and Reason,” a book that looks at the history of sexuality and law, in 1992, and dozens of other books on law.

The case is Ritchie v. Vast Resources Inc., 2008-1528, 2008-1529, U.S. Court of Appeals for the Federal Circuit.

To contact the reporters on this story: Susan Decker in Washington at sdecker1@bloomberg.net; Michelle Fay Cortez in London at mcortez@bloomberg.net

Last Updated: April 24, 2009 17:50 EDT