Waving Spyderco Knives - Without Machining

[Grover_Cephas]

Thanks, guys.

'Course, the flip side of this is that the patent for a "synthetic removable aftermarket opening accessory" is still available...

...

My patent-pending SRAOA (srow'-uh) devices are currently available at their introductory price of 9.99!

 

[No Avatar]

We seem to agree on the key legal points - i.e. that patents give their owners the ability to exclude others from doing what is claimed, that they must be precise, and if someone does indeed come up with something functionally different, then they have acheived a "design around" and can make it without fear of infringing the patent. However, where we differ is how the zip tie "wave" fits into those maxims. The invention of the hook shaped projection being used to open a knife is Emerson's, at least as far as the patent office knows. I think all of the arguments so far have been little more than artificial distinctions between Emerson's invention and the zip tie thing.

To me, if someone puts a zip tie on a knife so that it too catches on the draw and opens the blade, I would say that's a hook - what else does a hook do? Also, there is no requirement that the infringing device, whatever form it takes, look or be exactly the same as the patented one. There is also no requirement that it be well made or work every time. So long as a device accomplishes substantially the same thing in a substantially equivalent manner to that patented, it infringes the patent. This is known as infringement through the doctrine of equivalents.

So, just because the patent says that the hook must be "formed as part of the blade" does not mean both the blade and the hook have to be different parts of the same piece of material. The zip tie, while accomplishing the "waving" operation, is part of the knife blade. It is not separate from the blade as it is attached to it. It can be detached, that is true, but it can not be detached while doing the waving.

Now, I don't know if someone preceded Emerson's wave with a similar concept. If it is indeed true, then that cuts against the validity of Emerson's patent. It does not, however, exonerate subsequent infringement of the patent. You can infringe an invalid patent. But, because an invalid patent can't logically be enforced, any infringement is no harm no foul. However, invalidity only saves you from paying damages - it does not mean that you don't infringe.

As far as patenting the axis lock vs. enforcing that patent against every type of lock, that's a red herring. Patents only cover what they claim. The axis lock patent does not claim a folding knife that can be locked in the open position. If it did, all locking knives would infringe, but the patent would be invalid for claiming what was already known prior to the patent.

This all comes down to the fact that, like everything created by lawyers, patent law is not black and white. It holds a lot of surprises for everyone. For example, in 1998 Benchmade got a patent on the liner lock.

From U.S. Patent Number 5,755,035 :
"1. A liner lock folding knife comprising:

(a) a handle;

(b) a blade hating a side defining a blade plane and including a locking face consisting principally of a concave surface having an axis of curvature oriented approximately parallel with said blade plane;

(c) a blade pivot interconnecting said blade with said handle and defining a blade pivot axis substantially normal to said blade plane, said blade being movable about said blade pivot axis, between a folded position and an extended position; and

(d) a locking finger located in said handle and having a contact end engaging said locking face and holding said blade in said extended position. "

[[I think "hating" is supposed to be "having" in the first line of (b), but "hating" is how it came off the USPTO web site]]

 

[Parallax]

If Emerson ever tried to enforce their patent, it will then be tested finally because the defendant would definitely challenge the validity of the patent in order to invalidate it. As well, the zone of application of their patent claim would also be tested as well.

Until then, the most we can do is to speculate, really. But to label tying a ziptie to the Spyderhole as being unethical i suspect may go too far based on the limited evidence that we have, as from the abstract that was put on this thread, the claim appears to be too narrow to cover it.

 

[Grover_Cephas]

We seem to agree on the key legal points - i.e. that patents give their owners the ability to exclude others from doing what is claimed, that they must be precise, and if someone does indeed come up with something functionally different, then they have acheived a "design around" and can make it without fear of infringing the patent.

Right. There's no "fair use" with respect to patents.

I think all of the arguments so far have been little more than artificial distinctions between Emerson's invention and the zip tie thing.

And we think they're _meaningful_ distinctions. The problem seems to be with this statement:

To me, if someone puts a zip tie on a knife so that it too catches on the draw and opens the blade, I would say that's a hook - what else does a hook do?

It says "hook", and you're expanding the word "hook" to include any device of any shape or composition that presents resistance to another object. Dictionary.com lists 14 definitions for the word "hook". Of the noun definitions, all but one refer to the distinctive curved shape of the device (the remaining definition is "a trap", so unless we're capturing feral pants pockets... ). A zip-tie on a knife spine simply doesn't meet the definition. You'll note that wherever it's mentioned in the patent, the Wave feature is described as a hook-shaped projection. Again, you're looking at the result ("what else does a hook do?") rather than the device itself ("A curved or sharply bent device, usually of metal, used to catch, drag, suspend, or fasten something else").

Also, there is no requirement that the infringing device, whatever form it takes, look or be exactly the same as the patented one. There is also no requirement that it be well made or work every time.

Agreed. I included the "less effective" note to emphasize that the two devices are functionally different. The zip-tie sacrifices effectiveness in favor of economy and reversibility.

So, just because the patent says that the hook must be "formed as part of the blade" does not mean both the blade and the hook have to be different parts of the same piece of material. The zip tie, while accomplishing the "waving" operation, is part of the knife blade. It is not separate from the blade as it is attached to it. It can be detached, that is true, but it can not be detached while doing the waving.

Now, come on, you must admit that's a fairly weak argument. You're suggesting that any object that can't be separated from the blade during the moment of drawing is "formed as part of the blade"? By that logic, Spyderco's Remote Release violates Emerson's patent. After all, it has a hook molded into the handle, and the handle can't be removed from the blade while it's being drawn.

As far as patenting the axis lock vs. enforcing that patent against every type of lock, that's a red herring. Patents only cover what they claim.

I'm not familiar with the wording of the Axis lock patent. It was just an example off the top of my head to illustrate one of my points. A point that, given your response, I'm happy to drop.

But I think you've illustrated my greater point yourself. "Patents only cover what they claim". And the Emerson patent, as quoted here, only claims "a hook-shaped projection". Not any means of opening a knife in the draw. Not any device on the spine of a blade that catches the pocket lip in the draw. Just a "hook-shaped projection" that is "formed as part of the blade". The zip-tie trick is clearly a similar concept, but it's also clearly not described by this patent, as worded.

That said, it looks as if there might be another relevant patent, which could completely change the situation. I'm a bit perplexed by the fact that this one consistantly describes "a self opening folding knife and holster assembly". Even if you broadly define "holster" to include the pants pocket that the knife's carried in, you'd be hard pressed to describe my pants as part of Emerson's product, were I to buy one of their knives. Is there another patent that covers their stand-alone pocket knives more accurately?

 

[KeithAM]

It was mentioned before but it bears repeating -- patents offer limited protection, and for good reasons. To allow the patent holder to preclude new design solutions that accomplish the same thing would stiffle innovation. Here's a a legal concept I can state with certaintly: Ideas are not patentable. Designs are. The idea of using a protrusion from the blade to open a knife while withdrawing it from a pocket is not patentable. Period. Emerson's specific design is, assuming its valid in the first place (about 1/2 of patents challenged in litigation are ruled invalid).

A removable plastic zip tie with a box-shaped end is not substantially similar to a hook that was cut out of the same piece of steel as the blade, not matter how you cut it.

 

[No Avatar]

First of all, it should be noted that Emerson's patent doesn't read "fish-hook shaped," only "hook shaped." But, elevating form over function is not the way to avoid infringement of a utility patent.

My interpretation of the doctrine of equivalents is that the zip tie is a hook. "An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed elements, or whether the substitute element plays a role substantially different from the claimed element." I took this quote from a landmark patent case on the doctrine of equivalents - Hilton Davis Chemical Co. v. Warner Jenkinson Co. There are other tests for equivalents, but the important part is that they all focus on the function of the accused product, not their appearance, what they're made from, or how they were designed.

All of the definitions given above for "hook" go to the appearance of a hook, not the function of a hook. A utility patent is a recitation of functional elements, not a design plan. The function of each claimed element controls the analysis of a product accused of infringement. In terms of function, if the zip-tie on a Spyderco isn't a hook, what is it? In other words, if the zip tie isn't attached to the knife to catch on the pocket that the knife is drawn from, what is its function? No one has offered an answer to that question yet, other than to deny that it's a hook. To me, this is because the zip tie and Emerson's wave are functionally identical.

Finally, a patented product does not define the patent claim. The claim defines what is given protection. In Emerson's case, he has patened the combination of a hook shaped projection extending from the blade that is drawn against the knife's container - called a holster in the patent. My interpretation is that it claims a holster - of any form, up to and including a pocket - because the wave needs something to catch against in order to work. This does not mean Emerson "owns" your pants or sheath or whatever, only that he has a patent on a knife that is opened on the draw via a hook/holster interaction.

 

[storyville]

I think this is a really silly debate. The real question is: why are you all carrying tip-up anyway?

 

[jestyr]

true, it is silly. it's emersons responsibility to enforce its own patents, not us.

 

[KeithAM]

One last point and I quit, honest. The doctrine of equivalents is not applied broadly. In the case of an alleged non-textual infringement, to satisfy equivalency, the alleged item must be equivalent as to ALL elements of the claim. Here, for one, a zip tie is absolutely not "formed" as part of the blade. It's therefore not equivalent. Emerson could have written the claim to encompass both "formed" and attached after "forming." It did not. By doing so it gave up the right to prevent people from putting zip ties on their Enduras.

 

[Rugger]

Just don't refer to it as "waving" or a "wave".
Aftermarket 'add-ons' are the right of the owner for personal use. Don't use trademarked names or try to sell the modification as a "wave". Ernie has better things to do than chase down every person who slaps a zip-tie onto a folder- just don't use his trademarked name or try to sell it as such.

 

[No Avatar]

I take it from the deafening silence to my question that everyone concedes that the zip tie is performing the function of a hook. In that case, this debate has been reduced to whether the zip tie, after being attached is "formed as part of the blade." I agree that the doctrine of equivalents should be applied narrowly. But, if it is not broad enough to label an add-on designed to perform precisely the same function as claimed as an infringement of that claim, then the doctrine has no meaning.

Overall, I'm pretty surprised by this thread. I agree it's for Emerson alone to enforce his patent, but I disagree that that means that it shouldn't be shown respect by everyone. I can't believe that this is the same forum that cries foul every time popular knife designs (which are generally unprotected) are knocked off and sold cheap. I mean, when someone actually spends the time and money to get some measure of protection for an invention, people not only can't wait to copy it - and teach others how as well - but they argue that they're justified in doing so because, in their opinion, there are minor differences between what is protected and what they've done! And, before someone drags out the old moral relativism argument, that not-for-profit (yet illegal) patent infringement is less bad than for-profit (yet legal) copying of entire knives because the former does less economic damage, I will ask this last question: is that really the issue, or is it more of a question of respect for the contributions of the designer?

 

[Sal Glesser]

The Doctrine of equivlents does have limitations. It must be proved that the invention is doing the same job, the same way. Often difficult.

Is anything that rolls a wheel? Is a tractor tread a wheel, is a rolling octagon a wheel? I think you can get my point. At best a legal battle of words.

Also, is it being sold? If one is not making money on the idea, then patents have little strength. 5% of nuthin is nuthin.

As far as patents and trademarks go, it is ALL a respect game. Our R&D team can loophole around ANY patent in the knife industry if we chose to. We choose not to.

We believe it is fair game to improve or evolve an invention and if that's the case, the patent office would grant an new patent on the new improvement, assuming they felt it was a significant improvement. If it is a significant improvement, then it's not a copy.

We're working on an Endura mod with a wave for another forum. We would rather pay Ernest a licensing fee than design around his patent.

sal

 

[Grover_Cephas]

I take it from the deafening silence to my question that everyone concedes that the zip tie is performing the function of a hook.

Dude, you posted your rebuttal twenty-four hours ago. Relax.

I never used the phrase "fish hook". You did. Borderline strawmannishly, too. Quite simply, in my opinion, Emerson filed a narrow patent which claims protection of a "hook-shaped projection" which is "formed as a part of the blade". The zip-tie trick simply doesn't meet any reasonable definitions for those phrases. Your argument revolves around the premises that a zip-tie might as well be a hook because it's doing something that a hook is also capable of doing, and that a thing that can't be immediately removed from the blade might as well be considered "formed as part of the blade".

You can make those arguments, but in the end, it's based only on your opinion of the similarity between the two devices. Similarity, which is subjective, versus the wording of the patent, which isn't. The case is legally ambiguous, and therefore (in this case) morally ambiguous. If a court finds that the two devices are equivalent, then you're plain-and-simply right. If a court finds that they're meaningfully distinct, then you're plain-and-simply wrong. Until such a time as that, we're left to work only with your opinion that they're equivalent, which you find persuasive, and I don't.

And, before someone drags out the old moral relativism argument, that not-for-profit (yet illegal) patent infringement is less bad than for-profit (yet legal) copying of entire knives because the former does less economic damage, I will ask this last question: is that really the issue, or is it more of a question of respect for the contributions of the designer?

Interesting and difficult question, but one that's not totally applicable here. Particularly because the zip-tie trick isn't patently illegal (that's begging the question, after all), and at least in my case, it does zero economic damage to Ernie Emerson (I strongly dislike most of his knives in whole, and the Wave seems like a generally bad idea to me as a permanent feature; the "designer" of the easily-reversible add-on version has met my needs far better than Emerson ever has). Not to say that it hasn't happened, but I've never personally known anybody to pass on an Emerson knife because it was cheaper than buying the Emerson. It's always been as a lark to experiment with the concept, with the intent of changing the knife back after use. That's an application that the proprietary Wave feature simply doesn't fill.

 

[Grover_Cephas]

Thanks, Sal. It's nice to see somebody weigh in who deals with patent issues in the knife market head-on.

Also, is it being sold? If one is not making money on the idea, then patents have little strength. 5% of nuthin is nuthin.

What about the sale that was lost by the patent-holder? Obviously it doesn't apply here, but can't a patentor sue for loss of that sale? I seem to remember (grain of salt time) that Eli Whitney fought a lot of independent farmers for building their own cotton gins rather than buying his...

 

[Yester5]

Wow- I sure learn a lot on these forums. You guys are great
I feel the bottom line here is, as Sal stated, if the modification is not being marketed or sold, and is for the owners own use, no harm. But, ethically, I go back to my original post, if you want a knife with the "wave" on it, buy an Emerson.

 

[Sal Glesser]

Hi Grover, lost sales or hurt sales would be the only possible arguments.

Hey Yester5. You could also purchase a knife that Ernest is licensing to use his invention. We pay royalties and we collect royalties. Nuthin' wrong with that.

sal

 

[No Avatar]

I would point out, Grover that you do exactly what you accuse me of - namely, insisting that your opinion is the correct one. Yes, my argument does depend on the zip-tie being a hook - which no one has countered, other than to simply deny it, and that being attached to the blade is equivalent to being "formed as part of it" which I imagine was included so as to avoid drawing in things like thumb studs. I doubt that this will ever be resolved by a court, but I'll put it this way -> if I'm wrong, no one is damaged or injured in any way. Anecdotal evidence aside, if the zip tie is an infringement, then the value of Emerson's patent is decreased as a result of the passing on of the means to that infringement.

All of the above aside - just because the legal points here are disputed that doesn't necessarily make the moral ones ambiguous. You can get off legally and still be wrong morally. As I've said before, it all comes down to respect for the inventor. In a close call, I would side with the inventor and I'm very proud of Sal and Spyderco for essentially saying the same thing.

Oh yeah, one more thing (can't help myself) - a patent owner is free to sue for an injunction against continued or further infringement, it doesn't always have to be about damages or lost sales.

 

[Yester5]

Yeah Sal, my bad...I will be the first in line to buy a waved Spydie, you can count on it

 

[Parallax]

But if Emerson wasn't the first to think of using a hook-like equivalent to deploy the blade, and if it was the state of the art and common kniwledge among knife enthusiasts that a prong attachment could do that before the WAVE was patented, then it would not be even morally questionable for anyone to get around the strict language of the patent. It would be entirely correct in fact for people to do so.

In fact, how about this argument - the fact that such a trick was common knowledge at the time could have been the reason why the patent claim for Emerson's patent is so narrow - because Emerson could not patent any equivalent to the formed hook? So was there a proliferation of people Dremel-ing their Spyderholed knives, etc to achieve the same efect as the WAVE hook as at the time of the Emerson patent?

A very strong indication to me that ther was such common knowledge at the time was that the Kershaw Talon's bottle top opening prong was used for precisely the function of WAVING the blade by knife enthusiasts in the know. The only question then is - was that knowledge current at the time when the WAVE came out?

 

[Parallax]

Hopefully Mr Glesser, Spyderco will licesne the WAVE from Emerson for the proposed Pikal folder. It would sure make it easier to deploy it into Pikal grip...