Knife Patents: Worth The Paper They're Printed On?

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shecky

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May 3, 2006
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I've noticed knife nuts around here tend to take the idealistic high ground on intellectual property issues. Witness the endless pontificating over Cold Steel and Lynn Thompson's alleged unsavory business practices.

Searching the archives, I found numerous posts moaning and groaning how the Emerson's patented "Wave" feature has been ripped off by other manufacturers. Being curious, I snooped around and found that some of the designs claimed by some to be ripoffs, are not at all. In fact, they're patented themselves. US Patent 7,036,229, filed in 2004 and granted in May of this year, seems to show Andrew Demko's design currently marketed as the "AK-47", complete with it's "wave" feature, "self opening action" as it's called on the patent.

Another interesting one, US Patent 6,725,545 from 2004 shows a blade design allowing "kinetic opening" by "positioning a pointed hump located on the non-cutting edge of the blade against an object or the body of an opponent and dragging the tool in a rapid motion." IOW, the blade get's "waved" open.

Most interesting, referenced on Emerson's patent, is US Patent D228,545 from 1973. Design patents are often much less wordy, yet the illustrations show what sure as hell look like yet another "wave" design on the blade of a folding knife.

Maybe there really is nothing new under the sun?
 
Patents in general are not worth the paper they are written on unless the patent holder is willing to defend it. That means hiring a lawyer which will cost a bunch of $$$$$. If the person or company whom you believe is infringing on your patent has their own lawyers and a lot more money you are probably screwed.

It's sad, but it's the way things are.
 
It's not quite that simple. Trying not to use too much legalese, the fact that someone can get a patent on something does not mean they don't violate someone's earlier patent or that they didn't "rip off" someone else. If you find a way to improve on something that has been done previously you may be able to get your own patent on it (an "improvement patent") and still be liable for using the prior one. For example, say Henry Ford patented his car and you invented automatic transmission. If you built his car and added your automatic transmission, you would still be liable; if you used the automatic transmission in a different car, you may not be. The key is to look at what the claims (numbered paragraphs at the end of the patent) say and see if the later thing includes what is described there or is enough different to not be considered the same.

Thus, if someone took the "wave" feature and added to it, they could still be violating the patent on the wave. Note that I have NOT looked at the specific patents or Mr. Demko's design, so I am not accusing anyone of anything, just trying to give a simple explanation of some patent law. I will try to look at these when I get a chance.

Design patents are very different--not only are they less wordy, there are NO words except to label the pictures. Design patents only cover what something looks like (like a old classic Coke bottle), not how it works. Regular patents cover how it works, not what it looks like.

Hope this helps.
 
It's important to understand that there are no "Patent Police" who run around looking for violations and enforcing patents. It's up to the patent holder to watch for violations and to assert his patent against violators he sees.

It's also important to understand the concept of a "vanity patent." The US Patent and Trademark Office, PTO, is very poor at screening patent applications and a lot of patents get issued that aren't worth the paper they're printed on. The butterfly knife, for example, as been patented at least five times that I'm aware of. The first was valid. The subsequent patents would have collapsed in court because of prior art. But, the PTO doesn't do a good job of searching for prior art. It is, in fact, the responsibility of the patent applicant to search for prior art. Prior art doesn't have to be a previous patent either. We can't expect the PTO to search every patent that's ever been issued, every article or book that's ever been published, every catalog or trade publication, etc. The PTO makes a reasonable effort to verify that the invention is novel and that it doesn't conflict with any currently-valid patent (right now, they search back to something like 1973 which is as far back as they have full records online). As a result, if I were to submit a new application for a patent on the butterfly knife, it is quite possible that the PTO would grant that patent and I could get a very nice certificate suitable for framing (the actual document that the PTO sends you isn't that suitable for framing, but there's a company that will, within days of your patent being granted, send you an offer to print you a handsome certificate suitable for framing... for a fee, of course. In fact, your first indication that you've actually been granted a patent is the arrival of the offer from this company. :D). So, I might get a patent on the butterfly knife, but it's not worth anything except bragging. But bragging can be worth something. Sometimes, an inventor will go ahead and do this just to be able to say "Patented Design" in their ads.

When you file a patent application, you have some legal protection immediately, even before the patent is granted, even before the PTO begins its evaluation. So, an inventor may file a patent application knowing that if it is granted, it will be a vanity patent at best just to create stumbling blocks for compeditors. This is questionably legal since the inventor does have to sign a paper saying that he believes the invention to novel and worthy of a patent. But, without some sort of "smoking gun," it's hard to prosecute someone for that. By the way, a good patent lawyer can drag the application process out for years. So, this sort of patent application can be a stumbling block for would-be compeditors for years.

Next, you need to understand that not all patents are equal. There is a type of patent called a "design patent" which is very weak. It basically protects you from exact duplication. For something like a knife, such patents are usually very easily side-stepped.

Finally, how valuable a patent is depends on how well it's written and now the courts ultimately interpret how it's written. This is why you should always have your actual patent application written by a lawyer specifically-skilled in this art. One wrong word can make the difference between a patent that is worthlessly-narrow and one that is valuably-wide. (I know because I have recently been involved in a patent dispute that turned on the meaning of one word.)

The problem with knives is that they tend to be fairly simple and so it's very difficult to come up with something that is completely novel.
 
Patents are worth the paper they are printed on, at least to the extent you are willing to defend them.

Patents may, and usually do, make several "claims". One is not required to "practice" all or any of the claims. In fact, in my area of food product development, a usual patent may make fifteen claims, of which two might actually get practiced in products we make. Some patents are filed for the sole purpose of denying technology to the competition, even if the patent holder never intends to practice the patent.

Patents teach your competition how to make what you are making. "Trade Secrets" (like the Coke formulation) restricts formulation information from your competition but cannot be enforced legally. The reason Pepsi doesn't taste like Coke is not that Pepsi couldn't duplicate the flavor (although not the exact formula), but that Pepsi wants Pepsi to taste "better", in their estimation. I can only think that the alloy and heat treatment of blades might be subject to trade secrets because once you grind a blade, afix a handle, and sell it, you've tipped your hand. Someone who copies your design is unethical but not illegal.
 
Gollnick was pretty accurate.

But, the search records do go back to the late 1800s in some areas. Foreign patents can be checked (Japan,WTO, Germany, Britain - though not fully) - and note that these are under different rules - i.e. not the first to invent, but first to patent.

Also, the word issue. Blame the lawyers and judges, who often have little knowledge of the "art" they are deciding. Reading some of the decisions can be most amusing (in a frightening way sometimes).

Also note that when reading a patent, you should make a "claim tree". The patent hinges on the independent claims, those upon which others depend. And, note that it is the the whole independent claim, with all its limitations (features) that is patented.
 
shecky - thanks for that link. I couldn't agree more with what Don says. :thumbup:

I feel sorry for knifemakers that get caught up in patent wars...it's like being in a knife-fight...everybody gets cut.
 
It also needs to be understood that patents expire. So while a previous patent may exist for a design, a more current patent on a similar design will have more legal standing than a previous, expired, patent. So, it's not uncommon to find multiple patents based on a similar design from the PTO.
 
With the chinese copying everything (inc. computer software) the value of patents has I believe become greatly reduced....even Bill Gates has overlooked chinese copying selling his software incredibly cheaply in China in the hope that copying it will be reduced.
I think a trademark is the cheapest way to protect your invention, for eg rubiks cube everyone knows what it is and would much prefer to buy a 'proper' one rather than a copy even though the copies may be as good and although the same cannot be called 'Rubiks cubes', I think a patent rarely makes much cash for the owner but it makes alot for the patent attorneys, I've designed equipment with both UK and USA patents and the patents cost me alot of cash.

If I design a brilliant peice of machinery patent it in the eec, UK USA etc etc but don't have a patent in Greenland I can put a website on a server in Greenland and sell this producty all over the world and I don't think very much could be legally done to me.

Can someone answer this ...I patent a knife mechanism in the usa and sell this on the internet, a uk knifemaker patents a similar mechanism in the uk and also sells on the net are we both infringing each others patents if transatlantic sales occur, with the internet and global sales? with the net patent laws are broken all the time.
 
When I was in law school and I was taking my intellectual property courses, the very first thing my professor would say to every class was "don't believe anything that you read on the internet about IP because 99% of it is wrong."

Those people here who are not registered patent agents or patent attorneys should take all of the above with a very large grain of salt because much of what has been said is completely inaccurate.

A trademark is better than a patent? Really, you do know that they are totally different? A trade secret is unenforceable? Really? I've got a casebook 3 inches thick of trade secret and unfair competition cases on my desk.

A patent that is an improvement of a previous patented invention infringes on that previous patent? Huh????

Some patents are commercially viable and are worth quite a bit. Some are not. Some patents are prosecuted to close out an area to competitors for a time.

It is very easy for some people on the internet to get righteously indignant over "copying" other people. This indignation seems inversely proportionally to the formal education of the person complaining. There is a whole lot of fingerpointing of "unethical" practices by people who read somewhere on the internet that someone once said that someone "riped off" someone else. What there is not is any actual comparision of the actual patent application, the prior art, etc...

In general, inventors are not going to spend $10-15K to patent something that they do not think is commercially viable. They will also use due diligence to protect their rights. IP law is a multi-million dollar business, if not billions of dollars every year. What you guys have to realize is that the knife industry, even the largest makers, are not a major player in the economy. The makers really don't come close to the profits of even small software companies, let alone major computer, electrical, medical, and drug companies.
 
Gollnick, interesting post; I’m curious what your experience was, sounds like you had a bad one. You are correct in that there are no patent police, you have to defend your own patent, and it gets very expensive, maybe a million dollars for even a simple case to go to trial, so there has to be enough value to make it worth it either because you can get damages or because you have a product line that is worth defending against knockoffs. Some lawyers will take cases on contingent fee, where they get a part of whatever damages are awarded, but this can be as high as 40% or more and again they will not do it unless they think they have a chance of collecting. I’m not very familiar with the volumes of knife sales, is anyone making millions of dollars on them?

You do not have to do a search for prior art, that is the Patent Office’s responsibility, but it is true that they often do not do a good job. Some people do searches before filing applications, many do not, there are reasons to go either way. The best searches are often done by the company that gets sued as they try to prove that the patent should not have been granted in the first place.

Filing an application does not give you any legal protection whatever, you cannot go after anyone until the patent issues. What you can do is label your product “patent pending” which may give someone pause about doing something similar since they are taking a risk that you will get the patent and then come after them. I guess you can call that a stumbling block, but most companies ignore it in my experience. Even that risk goes down if your patent application is published, which most are after 18 months, since now someone can at least see what you are after.

Design patents are not necessarily “weak,” but again they only cover appearance and not function so a knife that works like another but looks different will not infringe a design patent, and one that looks the same but works differently will not infringe a regular patent.

I think there are actually very few real “vanity” patents—although there was one recent one on how to use a swing (a playground swing) filed by a patent lawyer for his kid that was tossed out pretty quickly. More common are people who are suckered into spending a lot of money seeking patents by the “inventor assistance” companies who claim they can help you make a lot of money on your invention—these are all pretty much scams and few individuals ever make much on their patents. However, big companies can and do make a lot of money on some patents.

Mr. Lancaster’s comments are extremely cynical, particularly for 1990. Sounds like he had a bad experience too, and some things have gotten worse since then. Some of what he says is true, but overly simplistic, and too long to respond to here.

Bruce, trade secrets can be enforced, but only against someone who stole them from you. If they invented it independently, then only a patent will help.

Oldgus, you are also correct that China is a big issue right now and enforcement there is pretty iffy so far. This is a big trade issue right now, as you say also for copyrights on software, movies, etc. However, if you have a US patent (and anywhere else) then you can sue for manufacture, use and sales in those places. While this may not prevent me from putting up a website in Greenland or manufacturing a copy in China, it does mean you can stop me from shipping into those places where you have a patent, and you can sue the customers for using the invention in those places (although the damages from a customer may be very small). And yes, if you have a US patent and I have a European patent on the same thing, we are each infringing when we sell in the other place, but not anywhere else as patent rights are limited to the jurisdiction that issued them (you can get European patents now that cover a number of countries there, but there is no worldwide patent).

Digitalrebelttu, are you a patent attorney? Most of your post is correct, but you seem unfamiliar with the concept of an improvement patent. Someone mentioned heat treatment above; if Company X patented their heat treatment , and I copied it and added one more step to slightly improve it, I am still liable if I use all of the steps that they claim. This is true even if my improved heat treatment with the extra step is itself patentable; the new patent means I would be able to prevent X from doing it with the extra step but I can still be liable to them if I use my own invention which includes their process.

BTW, I AM a patent attorney.:D
 
It would be nice if it were required that an IDS be supplied (at least for non-pro se prosecutions).

Then, too, it would be nicer yet if it were required that patents that are nothing more than improvement patents be required to state so.
 
Odulus said:
Digitalrebelttu, are you a patent attorney? Most of your post is correct, but you seem unfamiliar with the concept of an improvement patent. Someone mentioned heat treatment above; if Company X patented their heat treatment , and I copied it and added one more step to slightly improve it, I am still liable if I use all of the steps that they claim. This is true even if my improved heat treatment with the extra step is itself patentable; the new patent means I would be able to prevent X from doing it with the extra step but I can still be liable to them if I use my own invention which includes their process.

BTW, I AM a patent attorney.:D
Click to expand...

Yes I am a patent attorney and while I agree with you in the specifc instance, I don't neccesarily agree totally.

First, obviously there is no infringement of a patented process, manufacture, etc... if the newer patented item is an improvement of a previously patented process or whatever if the prior patent has expired.

Second, what I thought when I wrote that was of the specific instance of the "wave" opening mechanism. Having the same caveat as you, I have not read the patents and don't know what is being claimed, so this is completely hypothetical. Going merely on what I have seen of the "wave" function on the spyderco endura versus the CS AK47, the wave on the endura seems to be a projection on the top part of the blade that protrudes forward of the opening hole and is integral to the blade. The only function is to open the blade by swiping it over the edge of the pocket. The CS Ak47 seems to be a projection that is added onto the top of the blade that projects to both lateral sides of the blade, that not only allows opening on the edge of the pocket but also ambi thumb opening.

So, bearing in mind that I don't know the specific claims, if the Emerson (?) patent is drafted narrowly enough, the improvement of the Demko (?) design seems to be sufficiently different and adds additional function enough to not infringe. Is that arguable, probably.

With respect to a process patent for heat-treating, I don't know very much about the actual technical process, but generally I would think that it involves various steps, in a specific order, of exposing a blade to different substances and/or temperatures, for a specific amount of time. Now, I agree if another person were to take the same exact process claimed and merely added a step, say a different temperature exposure at the end for some time, then yes, probably infringing (if it would be even sufficiently novel to warrant a new patent). However, if another party altered that process to improve, say by changing the order of steps, the temperatures or substances involved, etc... to derive a new process that improves upon the prior process, but is not substantially or identically the same to the process claimed, then no infringement.

Obviously fact intensive, so I don't agree with a broad generalization.
 
I have a knife-related patent pending now. I think it's an exciting thing that will be noticed.

I went with a patent agent to do the 'dirty work' even though I was a professional writer for 15 years --- maybe it was BECAUSE I was a writer that I recognized the need for specialty skills in crafting a utility patent that will actually be useful.

I was amazed at how different the craft of writing a patent actually was compared with, well, anything I had come across up to that point. It's a very interesting, very crafty, skill because you want the best, broad coverage you can get without being so broad that the PO nixes something critical.

Also, the patent search process was a big deal. The patent agent wouldn't even touch it if he wasn't highly confident it wasn't infringing etc. So I got this report (12 MB of text) describing any prior art even remotely related. In the end it was good news for me, so we went with it.

BTW, the people I know (there are a few) that have had patents busted were under the impression that the design patent the lawyer sold them would function as a utility patent. They were wrong. Design patents are easier and cheaper, but not always the best tool.
 
digitalrebelttu,

Fair enough, generalizations are usually too simple, but I was trying to keep it simple for the (mostly) non-lawyer crowd. Where are you located?

orthoganal1,

You do have to supply an IDS (information disclosure statement) telling the Patent Office about any prior art you already know of. You don't have to do your own search, but if you do a search then you have to disclose the results of that too. Sorry if I was unclear about that. (There have been proposals that all applications include a search by the inventor, but there are practical issues, such as how much do you require someone to spend on the search. In litigation for example, defendants may spend tens of thousands of dollars on searches.)

Almost every patent is an improvement on something else, and usually says at least a little about the prior art and what the inventor considers the improvement to be. If you're suggesting that there be more specifics about which patents something is an improvement on, IMO that would not only require a search but in many cases in more complex technologies it would be very difficult, if not impossible, to find them all.

JCaswell, I'm a little surprised the agent made a big deal of the search--but maybe he just wanted to be sure you weren't wasting your money on something you couldn't patent. Again, many companies don't bother to search, figuring they just play the odds.

As someone mentioned, I would think a trademark could be just as important as a patent in the knife field, maybe more so. A trademark shows who the source of something is, so if I buy a knife from Emerson/Busse/Buck/Spyderco/Benchmade/etc. I know who is selling it to me and thus have some expectation based on their prior products and reputation as to quality. I would not expect the same quality from a knockoff even if it looks like a name brand knife.
 
Odulus - can you shoot me an email?
I have a simple patent question...if you've got a minute.

dan @ kosterknives.com
 
Odulus said:
digitalrebelttu,

Fair enough, generalizations are usually too simple, but I was trying to keep it simple for the (mostly) non-lawyer crowd. Where are you located?
Click to expand...


Yeah, I know, I try not to post because of that, just too difficult to condense it down, based on hypothetical facts, to make the kind of broad statement that non-lawyers want. It just gets me going that so many people do this jumping on the bandwagon of saying people "stole" ideas from others when all the facts are not known and it seems to be more of a validation mechanism for some people to support their beliefs about some companies. That seems to be the case with Cold Steel. A lot of people jump on them and say many different things without a solid back up to it, at least that I have seen.

Anyway, I'm in Texas, in a fairly large city with no IP law (a whopping 2 patent lawyers) so I'm not practicing at the moment. I've got some personal stuff to take care of and after the new year, I'll be doing the big law firm grind in Austin or Houston (haven't decided yet).

You?
 
Question.

From what I have heard and read, Unless the patent is viably worth far in excess of 10-15k it isn't worth bothering with.

I Have had all sorts of ideas and designs I have sketched out and toyed around with. But I don't have the means of fabricating too many of them. I also tend to come up with ideas specificly taylored to me. I spoke to a relative who had patented a product, and was told that its better to just make it, and market it, and make your money before the copycats come in and steal it, much like the razor scooters, (and Bill Gates). But he basicaly said as others have that unless the money involved was huge it wasn't much worth pursuing, especially with it now being an international issue, with china etc.

Now Granted if it were something a little more involved, like a machine, or chemical process, or whatnot I would obviously look into Going the step further and getting a patent. Though for something like the emerson wave, I don't think I would go that far. It would have to be a modivication with a more universal appeal than lockblade pocket knives.
 
Odulus said:
digitalrebelttu,
JCaswell, I'm a little surprised the agent made a big deal of the search--but maybe he just wanted to be sure you weren't wasting your money on something you couldn't patent. Again, many companies don't bother to search, figuring they just play the odds.
Click to expand...

Yes, he was quite adamant about conducting a detailed search and made it clear that he wouldn't write it if it turned up anything like my 'invention' in the search. He's pretty busy writing patents and apparently isn't too desparate for work. I took that as a good sign.

I'm surprised to hear many don't do detailed searches as a matter of course. It almost seems like a form of malpractice to me.
 
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