Official Luthiers Forum!

I don't know how many others check patent applications regularly, but
about once a week I'll search new applications for our field and walk away
a bit perturbed.

One that came up yesterday was app# 20070175320, "Accelerated Aging
Process for Acoustic Stringed Instruments". It covers putting a guitar in a
chamber with speakers to open up and artificially age the timbre of the
soundboard. Wow..... what a new idea. Boy, gee, uh, I've never heard of
that being done before. What a novel idea.

A few weeks ago there was another quite poorly and ignorantly titled
"Pythagorean Fret Placement" (app# 20070131084). The inventor seems
to have used Buzz Feiten's patents as the basis of his knowledge about
fret placement, which is somewhat like using pre-Copernican astronomy
to chart a space flight. No comments right now related to the actual
results of Buzz's system, but the history and reasoning in his patents are
nothing short of claiming that the sun revolves around our flat earth.
Anyway, the "inventor" seems to have solved the problems in Buzz's
system by replacing the "Rule of 18" (which he apparently takes literally)
with use of the 12th root of 0.5 (which is of course just a variation of the
12th root of 2 when working from the other direction). It's great to see
that this system that has been used for the last century and a half is
finally going to be patented. Ironically, Buzz's million-teenth
application for adaptations (and therefore extensions of at least parts of)
his patents was registered on the same day.

There are oodles of examples - another one was an application from
Denny Zager a year or so ago. This one had specifications so broad that it
would essentially cover any setup of any guitar that would be ever
remotely playable. I guess everyone else will have to move the outer E's
greater than .060"-.090" in from the edge of the fret surface and set the
nut action for Hawaiian to avoid infringement. It's been a while since I
looked at it, but I believe it's still waiting approval.

Now if things worked like they should, none of these patents would
stand a chance of being approved. Plenty of prior art and widespread use
of these ideas to establish them pretty clearly as public domain.
Unfortunately, I think the patent office in recent years will pretty much
grant anything if prior art doesn't show up on the first page of a Google
search, then let challengers fight it out in the courts to get the patent
dismissed. Heck, to prove this point a few years ago a father in Minnesota
helped his five year old son patent a method of swinging on a swing. I
suppose that's still not as bad as Australia however, where a man
successfully patented the wheel to prove this point.

Now I'm not terribly concerned about being sued for infringing on any of
these absurd patents, but I guess I still let them bother me. Sooner or
later there is the chance of someone having to fight it out in court.

Are there reasonable methods of submitting evidence of established
public domain, or at least pointing the reviewer to resources that
establish this. This is obviously not a case where I would hire a lawyer to
go fight on principle because something bothers me. Still it seems like
there should be something a concerned tradesperson could do to help
protect public domain. Anyone know???

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Eschew obfuscation, espouse elucidation.

Good thread, David. If anyone has novel ideas worthy of seeking patents, you are probably one of them. The nuisance patents that you describe are found in all categories and actually provide a lot of laughs.

Hopefully, our resident patent attorney, Steve Courtwright will chime in here and provide some solace for you and maybe just a few pearls for us all.

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JJ
Napa, CA
http://www.DonohueGuitars.com

Key word in davids post "applications"

I came up with an idea a while back to help those that are ust learning to play the guitar. It was somehting to ease the pain of the fingertips that is caused by the strings.

When I looked at hiring an attorney to process the invention and then find a company that would actually make and help market the product, it was just outrageous.

I'm sure the gazillion pattent applications that are processed every day that are so frivilous dont help people like me who have a legitimate idea.

Thanks for bringing this up!

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Reguards,

Ken H

I think it all comes down to capital resources. If you get challenged on a dodgy patent, and they have more money than you, they can just lawyer you to death until your money runs out and you have to walk away.

Glad you mentioned the guy with the patent on the wheel, I was going to bring that up when I started reading your post.

Ken, was this idea, by chance, a piece of plastic that wraps around the finger
tip and thumb to make it easier to pick the string?

Glad to be able to respond, David.

Snip> Are there reasonable methods of submitting evidence of established public domain, or at least pointing the reviewer to resources that establish this.

Yes, there is a way to do this and you don't need to be or have a lawyer. There is no fee or difficult special process to submit "prior art" to be considered by the PTO if an application is not yet granted as a patent, i.e., still in the examination process.

Snip> This is obviously not a case where I would hire a lawyer to go fight on principle because something bothers me.

Some procedures to re-examine patents (instead of pending applications being examined) are indeed, very expensive and are more like a trial than typical administrative procedure at the PTO. But they are mostly expensive for only the patent holder because he/she must defend the patent once a new question of patentability has come to the attention of the USPTO.

So, there are ways of submitting certain types of prior art which will force the PTO to take another look at whether the claims of a patent are valid. One of these ways requires only a submission of the art and a one-time request to take another look in view of the new art. This procedure would cost much less than a custom guitar, so it may be in your best interest to consider this route if the patent actually 1) claims something which actually is in the public domain, 2) there are few or no good alternatives, and 3) there is existing, printed prior art which clearly predates the patent filing date by more than one year.

Recently, the Supreme Court ruled in a case (KSR) on a patent in such a way as to make it more difficult to obtain patents. We see in the next year a definite cooling effect on these marginally inventive applications, so maybe this will not come up so often in the future.

I have been speaking generally here. If you want more info in re the above shoot me a PM and maybe I can help out some.

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

Great post David! How very true this is. Thanks for that clarification Steve, very helpful information. After going through the patenting process on our neck templates that we sell, I do understand what it takes to go through this process. Also, a patent is only as good as your ability to defend it. This basically means, if you don't have a $100,000 to defend your patent in court, then don't waist your time getting something patented. At least that was my take on it. But like Steve says, your patent is only as good as your ability to defend it. So David, I don't think it matters that these guys are patenting these things, I'm sure they couldn't defend it anyway!
Tracy

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Tracy
http://www.luthiersuppliers.com

I've been involved in legal and just pre-legal action it two cases where I had basically put ideas into the public domain which were later the basis of utility patents. In both cases, when the proof of prior art was presented either to the plaintiff (Gibson vs. Brian Moore Guitars) or to the patent holder (F...m.. vs. D-TAR, never filed), the other side just backed off on defense of the patent, but I/we never pursued having the patent nullified. There is also the semi-famous example of the Novak patent on the fanned fretboard...a patent made moot by the existence of the orpharion, a fanned fretted instrument from the 17th century.   In all these cases, the patents were issued because the USPTO patent examiners did not know enough about public domain prior art to catch the "unpatentability" of the "inventions".

Patents are not guarantees of protection, nor are they confirmation of the unique qualities of the invention. A patent is basically a license to go to court. In the case cited in this thread, if that patent is granted, nobody in their right mind would pay the money to defend it.   I'll go on record as saying that the first person I knew who rattled a guitar with a loudspeaker to accelerate the break in period was a luthier named Clyde Tinsdale who lived in Woods Hole, MA in 1964. Then there are numerous examples of doing this over the years. This is so public domain that it's just ridiculous.

I have to say also that this is another example of someone not doing their homework. It is reinventing the wheel.

A patent is only as good the owner would want to fight it in court and not all patents get approved. It is comical though to see this stuff but it has its serious side
john

The thing for you to do, David, as you know, is not to let it bother you. But there is a period for public comment while an application is pending. I believe you can do that for free. After the patent is granted, it will cost you to argue about it.

The Patent Office does (I think) a cursory search of prior patents for something that might be prior art. But the way applicants deal with this is to cite those patents themselves, and then say something about how theirs is not really the same. The Office does not have the resources to search broadly for prior art.

It's a given among patent lawyers that a patent is easy to get and hard to defend. Most applications are granted; most litigated patents are invalidated. People holding questionably patents who have halfway decent legal advise will try to intimidate and get some licensing fees, but will not be so foolish as to sue, when the potential gain in royalties is a fraction of the litigation cost, and they stand to lose any claim to the patent.

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Howard Klepper
http://www.klepperguitars.com

When all else fails, clean the shop.

I have so many thoughts here and so little time.

Ken - the patent process is a tough and expensive route indeed. I advise clients to do the cost/benefit analysis and to do a business plan. It has to make sense from a $ standpoint.

But a patent, if valid, in addition to being able to stop someone from making your invention, is also defensive in nature. Once that document is public, nobody else can patent your invention.

Which brings me to my next point. If you have a good idea, and the funds don't exist in your business plan to file and prosecute a patent, find a way to publish it, because a publication, with its clearly established date, is the best defense you can have.

BTW, Rick. examiners have exactly 7.5 hours to read a patent, perform and electronic search, read the prior art and generate an office action either rejecting or allowing the claims of the patent application. Not a good recipe for success, is it?!? As you say, poor homework, which accounts for much of the crap patents being issued.

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

Actually, Howard, once a patent is granted it is presumed valid and the Courts are very reluctant to invalidate a patent without clear reason to do so. In practice, the Courts uphold the validity of patents more often than not. Of course, a patent holder gets to see how the patent will be attacked before the case actually gets to court, so will back down when presented with good evidence before risking having the patent invalidated in court. Most cases settle, no determination is made of patent validity, and the patent holder continues to wreak havoc in the particular industry. So it goes!

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

Todd, to an extent you are correct. The system does not work well for the "little guys." It is hard to be in the patent business and see this perception. On the other hand, I have lots of "small" clients, with only one invention, and sometimes great things happen, which I am proud to be a small part of. Operating a small business is a tough way to make a living, fraught with pitfalls of many types, and high risk attached to every decision. Fooling around with new technology requires being aware of and proactive about new technology issues. Patents are only one of those issues and sometimes a very important part of the puzzle.

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

Hmmm. When I was in law school (before the current wave of patent overkill and companies whose only business is farming patents) a professor said most patents litigated to a judgment are invalidated. You are no doubt more current.

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Howard Klepper
http://www.klepperguitars.com

When all else fails, clean the shop.

As I am sure you know then, Howard, application of the law changes as the courts pendulum over time.

Until very recently, the "obviousness" test for patentability was lowered over and over by "pro patent" courts. It seems with this new decision, (KSR), the test will be revamped and we should be returning to a more common sense approach. Let's hope anyway...

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

    It's funny you mentioned Australia! I just got my patent on Australia! Now if anything Australian is used without my approval I'm GONNA SUE!!!! HA! HA!
HA!

    Ah! I should'nt of said anything, I was going to patent Canada too!

     It used to be, as I understand, that if you applied for a patent, one could stop the proceding and state "patent applied for", thus the PAF pickups. The specifics therefore weren't released to the public which turned out to be better than a patent. I believe it's been changed.

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Billy Dean Thomas
Covina, CA

"Multi famam, conscientiam, pauci verentur."
(Many fear their reputation, few their conscience)

So how exactly does one challenge an application? I think we should get together and shoot these idiots down!

In short, Paul, the best way and most sure way is to send in a printed publication, having a date more than one year before the filing date of the application in question (although this is not the only way). It is sent to the attention of the examiner handling the case. He then considers the validity of the claimed invention in view of what the prior art teaches.

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

I love US patents .. mainly because I live in CANADA where they are pretty meaningless (sorry Billy !!) .. what are you gonna do - come and take my snowshoes (OH .. and bring a passport - your gov't soon wont let you back in without one)

But seriously, as stated, if you cant defend it, its useless to you. Beismeyer never patented his TS fence design - figured everyone would be copying it anyway and he could never afford to defend it .. so why bother going thru the motions

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Tony Karol
www.karol-guitars.com
"let my passion .. fulfill yours"

Edit: publication = prior art if publication date is prior to filing date of the application and subject matter is relevant to the claimed invention.

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

Well it sounds like there are some folks here who really know something
about how the system works. Perhaps I'll go through my library this
weekend to find some published prior art if it's something that can be
simply submitted. I guess I had assumed that this would have to be done
in the form of a costly challenge. If submitting a few page numbers from
a publication may possibly help protect public domain, it seems like a
worthwhile few minutes spent.

Steve, if you know enough to offer a quick tutorial on things like how to
submit prior art and how to find who/where to send it, I would gladly take
a few minutes to do my part when things like this come up.

On a side note, if forums like this one are well archived will postings of
tools and techniques here be enough to consider published prior art if
posted prior to patent filing? I've got a whole slew of tools and techniques
that I would love to insure are kept public domain. Whether I think I
invented them myself, or they are simply an unpublished but age old bit
of wisdom I think it a wonderful thing to help protect public domain.

Of course I'm sure Howard's advise is certainly the wisest - "The thing
for you to do, David, as you know, is not to let it bother you."

I guess everyone has their peeves, and I really shouldn't let these things
crawl under my skin. Oh well.

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Eschew obfuscation, espouse elucidation.

>>Steve, if you know enough to offer a quick tutorial on things like how to submit prior art and how to find who/where to send it, I would gladly take a few minutes to do my part when things like this come up.

Give me a couple days and I will put something concise together - just got to do a little research first.

>>On a side note, if forums like this one are well archived will postings of tools and techniques here be enough to consider published prior art if posted prior to patent filing?

Good news, I think the answer to that is definitely, yes!

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"Building guitars looks hard, but it's actually much harder than it looks." Tom Buck

[QUOTE=jmanter]Ken, was this idea, by chance, a piece of plastic that wraps around the finger
tip and thumb to make it easier to pick the string? [/QUOTE]

Nope, it went on the fretting hand instead

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Reguards,

Ken H