actually, Spyderco's patent was well written and covered a lot. It covered all opening holes, of any shape, and even "impressions" used for opening
Shows you what I know, eh?
But, this does help illustrate some important points.
First, as I said, you can patent the shape of something if that shape somehow gives that object a new or improved function.
Second, the reach of a patent often turns on a single word. If your patent is to narrow, your competition may be able to get around it with just a tiny design tweak. But, if your patent it to broad, the Patent Office may not grant it and even if they do, the courts may subsequently dismiss it leaving you with nothing. Writting patents is a high art. It's best to get a qualified lawyer to help.
Third, patents expire. You get 17 years. You can extend to 20 years if you can convince the PTO (Patent and Trademark Office) that continuing your patent protection would be in the public's interest. But, 20 years is the most. Ah, but here's where a good lawyer enters in again. You get quite a bit of patent protection from the day you submit your application even before your patent is granted. A good lawyer can draw that process out buying you several more years of protection. But, even with all of tricks in the book, 23 years is about the limit on a patent.
Copyrights are good for, as I recall and I may be wrong on this (looking up the actual data is left to the reader as an exercise) the life of the original author plus 99 years (keep in mind that you can leave your copyrights to your heirs as part of your estate). Anyway, regardless of what the actual number is, it's a long time.
But, trademarks are perpetual. As long as a business keeps paying the renewal fee, it can keep its trademark.
Forth, even if the shape of an object doesn't somehow give it a unique or improved function, you can still trademark it if that shape identifies or distinguishes your product in the market. The classic example being Aunt Jamima (SP?) Syrup which comes in a very distinctivly shaped bottle.
Fifth, patents are broader than trademarks. A patent can say something like "any shaped hole or indentation in the blade of a folding knife that is intended to assist in opening the knife." But trademarks must be specific. I can't trademark, "a bottle in the shape of a person." I can only trademark a specifc shape.
Sixth, patents can apply well beyond the original invention. I used to work for a company that made warehouse automation equipment. For some reason, we had the good fortune to patent, "portable computer with removable battery pack." That was well before PCs even existed. The computers we were thinking of resemble over-grown calculators and typically have a bar code scanner attached. They're used for taking inventory. But, when the lap-top computer did hit, we cleaned up collecting license fees from the likes of HP and Compaq for several years.
This case brings up some the subject of licensing. The law says basically that once we licensed HP, we also had to license Compaq, Dell, Toshiba, Sony, and all others. Basically, if you decide to exploit your patent by licensing it, you have to license everyone who wants a license under comparable terms. But, Zenith refused to pay us and made laptops with removable batteries without a license. We sued them. The courts upheld our patent and awarded us a tidy bit of damages. But, here's the fun part: because Zenith had violated our patent and forced us to sue them and had counter-sued us and so forth, the law allowed us to have "malice" toward them and refuse to license them. Notice, please, that Zenith is no longer in the PC business. Between having to pay us tripple damages and then not being able to offer competitive laptops with removable batteries, they were driven out of the market.
Trademarks, on the other hand, are often confined to a specific market. A market can be defined in a lot of different says. There is a company that trademarked making ironing boards yellow color. The ironing boards we're talking about here are used in large, commercial laundries. They successfully argued that their ironing boards were a distinct product and that they had, for a long time, distinguised their product in the market by making them yellow. So, the color yellow, when used on an ironing board anywhere in the US, is trademarked. But, there's a company here in Portland that also has a trademark on the color yellow. In this case, it's the color yellow when used on a taxi cab car in the Portland, Oregon and surrounding communities area. So, markets can be a specific product, a specific geographic area, or other definitions. Spyderco can trademark a round hole on a knife blade. But, they can not trademark all round holes anywhere.
Shapes can be trademarked. Smells can be trademarked. Even sounds can be trademarked.
AOL does not have a trademark on the phrase "You've got mail." They tried, but other companies where able to show the PTO that e-mail systems have been popping up messages saying "you've got mail" for decades. But AOL does have a trademark on the sound of their distinctive "You've got mail" announcement. AT&T has one on the tone peele you hear with the message "Thank you for using AT&T" when you make a long-distance call with them. Harley Davidson tried to trademark the distinctive sound of their motorcycles. But, the PTO didn't feel that they're definition was specific enough.
