Official Luthiers Forum!

I think they are a good thing. If not abused. Seems like everything in our American legal/justice system is being abused these days so I guess the Patent Office is getting it's fair share....too bad.

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

I just wish all of you folks would patent your mistakes. Then I wouldn't be able to make the same ones.

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Don Atwood
Arlington, VA

abused how? This is not a recent problem. Something like 1% of all patents ever turn into "real" products. I think this points more to patents are usually filed for in the R&D phases, not in the commercialization of a product.

This makes perfect sense to me. Some products make it, and others don't... sometimes it is hard to tell which is which in the early stages of the lifecycle.

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

I think Patents are a good idea for certain things but sometimes people abuse them and take credit for inovations that are not their own. I heard recently on one of the other forums that there was a person patening some neck attachment configurations that many luthiers have been using for years. How might this effect us?

I think Gibson's late-date patent of the Les Paul and subsequent litigation is abusive. What if Bigsby or Apps had had patented the single-cut solid-body? There'd be no Les Paul guitar! What's next? Only Gibson archtops?! What if Torres could have patented his fan-bracing design? What if somebody did it NOW?

I think some improvements of an existing design should be in the public domain--like, for instance, improved guitar intonation. It seems quite hubristic to hoard something so integral to the function of the instrument, just to make a few bucks.

What about things that are only variations on ideas that have come before? People have been cutting holes in guitar sides for, I'd guess, at least fifteen years, yet Kenny Hill has a patent on the two side holes drilled into the upper bout of his instruments! How about fingerboards raised up above the soundboard on classical guitars? Thomas Humphrey has a patent on that, though the idea dates back to the 19th century (to be fair, I don't think T.H. has sued anyone else using that idea)!

Some people have devised a way to have their cake AND share it. Abe Wechter has said that anyone may use his patented tail block access panel, free of charge, as long as they credit him for the design. Fair enough.

It seems that at the same time we've had a great surge in the free sharing of lutherie knowledge over the past thirty years, we've also had a group of people who feel they have to jealously keep their "secrets." Unfortunate.

Carlton

I agree that the community of sharing is raising the level of everyone's work.

However, all of the things you speak of I think are absolutely valid (perhaps with the exception of Gibson / Fender waiting nearly 50 years to seriously try to protect their body shapes..)

I think 2 things would protect you from pure craziness... "public domain" -- an idea is so common and universally used tt it is "public knowledge" -- x bracing, fan bracing, etc. and the second would be prior use. If you were using the system prior to the patent I belive that you are exempt.... I am not a lawyer, but I have discussed these issues several times with attorneys.

I think if you put significant research into something, brand it, put money behind promoting it, etc. it is reasonable to make money on it. Even if you merely "plussed" an idea in the market place.

Let's face it, patents or not... Novax, Feiten, etc. are not getting rich on these inventions.

My guess is it is more an ego move to ensure that they are given proper credit for inventing (or at least branding and popularizing) some innovation.


And.....

remember, not all patents stand up when tested in the courts.

I understand your point, and I very much enjoy the community of sharing that we all seem to have... but there is nothing wrong with free market capitalism either.

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

I don't think "things" are patentable in the "r&d" phase. Certainly it may be what pushes R& D to keep there funding alive from corporate. Also I Think many of us mix up Patent with copyright and trademark. The rules are all some what different. But again today everything seems to be patentable..But maybe I'm wrong has anyone looked up tthe rules. Is anyone working with a patent attorney right now? I think we tend to make generalizations without knowing the real trueths. Ya tink?

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

I'm in the early stages of writing a patent for something I thought up at work. We are an R&D company that re-engineers pharmaceuticals for big pharma companies. We work out how to do a job, apply for a provisional patent, and then license the technology to the client company, this is all done in the R&D phase. In this case it's the process that gets the patent rather than the product.

One of the first steps in applying for a patent is to do a patent search to check for prior art, you can do this online for free at the US patent office website. If you find something that is similar, even really close to your idea, you can get advice from a patent attorney, who may find a way around an existing patent. Or you can submit your application and let the examiners work it out. The bottom line is that the idea has to be new and non-obvious. And once a patent has been granted, it can still be disputed. Another company I worked at were knowingly breaching somebody elses patent, but our attorney had found a few ways to dispute their patent if they ever challenged us. This is what patent attorneys do.

A patent is a monopoly on your invention that lasts for usually 20 years. Sometimes it not a good idea to get a patent, just ask coca-cola or the colonel. Secret recipes don't stay secret if you publish a patent.

[QUOTE=Dave-SKG] I don't think "things" are patentable in the "r&d" phase. Certainly it may be what pushes R& D to keep there funding alive from corporate. Also I Think many of us mix up Patent with copyright and trademark. The rules are all some what different. But again today everything seems to be patentable..But maybe I'm wrong has anyone looked up tthe rules. Is anyone working with a patent attorney right now? I think we tend to make generalizations without knowing the real trueths. Ya tink? [/QUOTE]

I am certainly no expert on this, but my companies have applied for and received a couple of design patents, and I dabble in product licensing..... So I think I have the basics down.

Companies definitely apply for patents while in the R&D stage. It is kind of silly to apply for them once the product is on the market.... don't 'cha think.   

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

Brock, I think in your gentlemanly dissent, you've actually made my point: The single-cut solid body guitar IS public knowledge. It's been around and prominent for over fifty years. Whether for copyright or patent infringement, I think Gibson's suit against PRS was petulant, at best. I might even give Gibson the benefit of the doubt if they had invented the design, but they didn't. Bigsby and Apps (with a carved top, even!) came first. Prior use? Fine, but now is anybody gonna be safe marketing a new guitar of that shape--even though that IS the traditional shape that guitars have had for 150 years?

I've thought about it, and maybe I was too hard on Mr. Feiten. After all, anybody could do the research he did and use it on their guitars and call it improved intonation. They just couldn't give it a brand name or patent it. Fair enough. He could have achieved wide recognition, though, if that's what he wanted, if he'd presented his findings at a GAL convention and made it available to everybody. But, yes, capitalism can fuel innovation, so it's fair if somebody takes advantage of it.

Carlton

Having been involved in the design and manufacture of farm machinery for the last 30 years, I find the patent concept has become amusing at best. Our main competitor, John Deere, routinely patents something as simple as cutting a square hole thru a square tube for the purpose of inserting another square tube.
I would guess that a large percentage of these type patents would never stand up in a court of law but who in their right mind is going to take on a multi-national giant. The effect is that they can bully their competition into submission.
I believe that Deere has lost at least one patent suit based on the principle of "Latches", a situation where so many parties are using the idea that it is considered public domain. I'm certainly no patent lawyer and anyone is sure welcome to refute or expand on this.
Nelson

[QUOTE=npalen] Having been involved in the design and manufacture of farm machinery for the last 30 years, I find the patent concept has become amusing at best. Our main competitor, John Deere, routinely patents something as simple as cutting a square hole thru a square tube for the purpose of inserting another square tube.
I would guess that a large percentage of these type patents would never stand up in a court of law but who in their right mind is going to take on a multi-national giant. The effect is that they can bully their competition into submission.
I believe that Deere has lost at least one patent suit based on the principle of "Latches", a situation where so many parties are using the idea that it is considered public domain. I'm certainly no patent lawyer and anyone is sure welcome to refute or expand on this.
Nelson
[/QUOTE]

Nelson, I think you're right on the money. A few years ago a patent attorney over here patented the wheel as an excersize to illustrate how ridiculous the situation has become.

Something I meant to mention before. As I said, I dabble in product licensing.

One of my ideas has to do with kids and peanut butter & jelly sandwitches.

Smuckers has patented the PB&J. No kidding. They got it when they applied for the patents for their "uncrustables" product.

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

Smuckers hasn't just patented pb&j, they're agressively defending the patent. We need to go back to the old standard of patenting. Now, you can patent everything. The patent office said they couldn't keep up, so they'd give up.

The Feiten patents are a great example. They could have kept their method a trade secret, and marketed the hell out of it, and I'd be fine with that. They got the patent office involved, and now they could sue any guitar maker that actually tries to put proper intonation on a guitar. And the guitar industry has gotten to be a big enough market, you may see Fieten join up with a group that just want to make money by suing people over the patent. It happens way too often. And Feiten just keeps applying for the same patent over and over again, and the Patent office lets them. Feiten's patent may never expire, and you will always be afraid that his lawyers may send you a cease and desist letter. Of course, I don't use the rule of 18 anyway, that's just an approximation. So his patent doesn't apply to me. When he patents the square root of 2, I'm in trouble. And now Ernie Ball has patented the compensated bridge.

The patent process is there to benefit society. You tell us how to make something, you get an exclusive patent for 10 years. After the 10 years is up, we get to make it withoug paying royalties. If instead, you use the patent process to try to extort money out of people who can't afford the lawyers, you are a bloodsucker who is just trying to use the government as your own personal mafia. And the truth is, that's where we are today, more and more. And it hurts our society much more than it has to. The company that patents the next life-saving drug deserves much more of a right to defend his patent than the guy who patents the wheel, but in our current system, there is no difference.

You can see it so easily in the guitar industry. Is there someone that has invented something great, that you just have to have? It's just not going to happen very often, but there are new patents every day. Sure, someone might invent something cool, but we can live without it, and if we can't, we should be willing to pay. People are just looking for things that can be patented so that every guitar includes a royalty to them. And that's wrong.

Well said, Eric! EB has patented the compensated bridge?!!! I'm tellin' ya, the slotted headstock is next!

Carlton

But the Feiten patent is only as good as the first lawsuit win. You can patent anything, but unless you win a case violating that patent, it's no good. And that requires a lot of money to lawyers. Buzz has already gone up against Taylor and Larivee. I don't know what stage they're at now, but Tarylor and Larivee haven't changed their designs, so we'll have to see where that goes.

Lance

Lance, not to pick on you, but could you withstand a lawsuit? All he has to do is go down to Kinkos and make a few hundred copies of a cease and desist letter offering to settle for a $10000 lump sum and a royalty rate of $50 a guitar, and there would be a lot of luthiers that would feel compelled to settle. All he's got to do is sue a few prominent luthiers, and more would get into line. If he really was going to sue you, you'd be money ahead to settle at the rates I mentioned. This is all totally unrelated to the fact that you don't use his system. Feiten is making a lot more money than any of us, and can probably get backers if his case looks good, so his lawyers are paid for.

There is a patent by Hurco for programming CNC machines at the machine. All the big manufacturers were paying royalties. Haas went to court because the patent has no merit, but unfortunately settled. So Hurco's bogus patent stands. It's an expensive game, and if someone like Feiten can win a case, the rest of the industry may have to fall into line and pay royalties.

Actually, if anyone has any knowlege of a work published prior to '95 that mentions moving the nut closer to the first fret than the rule of 18 would suggest, I would be interested in hearing it. Once that detail falls, the whole patent falls. People were setting the intonation for individual strings on the bridges of acoustics long before the patent. Feiten can't prove how you are setting the intonation, so his patent is worthless. But he can prove that you are moving your first fret closer to the nut. You can have a patent invalidated by submitting evidence of prior art to the patent office. The people that are opposed to software patents have been doing that with at least a little success.

Moving the first fret closer to the nut was certainly done by luthiers before Feiten, and in one of the patents, he even quotes someone saying that the first three frets are sharp because of string tension. That person probably said "so you should move the nut closer to the first fret", but of course that was left out of the patent application. I thought Cumpiano mentions it, but I can't find my copy.EricKeller38452.090474537

Hey Guys,
This is what this forum is all about people chimming in and giving their professional or not so professional advice on a topic that may be important to some and of no consequence to others. I for sure have learned a good deal about patents as I never thought you could patent something in the design stage. In my younger days I worked for a company that did injection (plastcs) molding and were always in r& d but only got patents on finished products. So now thanks to Brock and others on this post i have learned something. No Black Tape and No Porn. Is anyone mad? Anyone not interested in patents just don't look.

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

When I innitially caught the "bug" I had big dreams of designing that big innovation and cashing in a big pay day. Since I've been with this community, I've realized how that is a headache for the big boys.   

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DES - Farwell, MI

Prior use is a defense to a patent infringement suit. Its right in the code. Getting a patent is not enough. In order to defend it the holder must be able to defeat any claim that they did not developed it. I'm a lawyer in my spare time and have successfully defended an infringment suit based on the prior use defense. The problem is that many, probably most, people can't afford the cost of a suit against a large corporation. That is where the abuse is and the fact that many patents are issued that probably should not have been.

Joe Volin

Thanks for chimming in Joe V! I have a question...don't the big boys use it only when the litle guy is really seeing some significant revenues. I mean even the big guys aren't going to run after every little infringement right? It seems to me it wouldn't be cost affective. On the other hand if you are small guy and one of the big boys is taking in a chunk on your design it's going to be worth your while to claim infingement...No? So it sort of works both ways...in other words it matters where you are on the food chain. and which way the money is flowing. It matters how many dollars are being generated before anyone acts/re-acts either way. For example... Buzz Feiten isn't going to sue me...I don't have anything for him to get. He may also not sue me because it would cost him more to claim infringement than he could possibly recover in damages. So us little builders realy aren't in the story anyhow.

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

Yeah, but the little guy never has the resources of the big firms. You could never afford to defend the case. They will "lawyer" you into bankruptcy.

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

[QUOTE=Brock Poling]
Yeah, but the little guy never has the resources of the big firms. You could never afford to defend the case. They will "lawyer" you into bankruptcy.
[/QUOTE]

And along those same lines of reasoning, the big boys probably have lawyers on retention. For them it is just another cost of doing business that is factored into their yearly budget.

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Don Atwood
Arlington, VA

If the legal profession were forced to abandon champerty and the rules of procedure were amended, in civil matters as well as criminal, such that costs followed the event our legal system would move somewhat toward being a justice system. Would also help if juries were taken out of the damage assessment process, or alternatively were forced to use factual instead of emotional bases for assessment.

[QUOTE=Brock Poling]
Yeah, but the little guy never has the resources of the big firms. You could never afford to defend the case. They will "lawyer" you into bankruptcy.

[/QUOTE]
Brock, I agree 100% with resource part but not the Banruptcy part. First if you cease and desist. matter's settled. Now ok then the BG wins and maybe unfairly so on the other hand...i don't think the BG is coming after Me, for instance, since the only thing he's going to get is an order of the court to cease and desist. I have nothing to give in the line of Damages. Also I would think damages would have to be proven and then to some financial extent. I would think a tough job. But certainly your point is well taken/made. There are so many patents out there that are infringed upon daily with no consequence. That's why as a luthier I am not much worried. I think they look for deep pockets and even then only if the fight will result in a bounty of rewards.

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"