Waving Spyderco Knives - Without Machining

[Grover_Cephas]

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,

I don't know where you got those ideas. I'm going with the words used in the patent, and the dictionary definitions for those words. You're proposing that we apply broader definitions to those words. That makes you the positive claimant, dunnit?

As for not countering...
You said "it's a hook."
I said "no, it isn't; the dictionary defines a 'hook' by its distinctive shape."
You said "It doesn't say 'fish-hook shaped'."

You ignored my point and "countered" with an apparent non-sequitur.

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.

If that was the case, wouldn't it strengthen the argument that the patent wording is written to exclude devices added to the blade after the initial "forming"?

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.

Pascal's Wager cum patent law?

Similar fallacies, too. If you're wrong, then you've needlessly limited the free exchange of ideas on this forum, and needlessly limited the options of knife-owners. And again, I'm dubious about how great a financial damage is actually done to Emerson as a result of zip-tied Delicas.

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.

If you take "moral" to mean "doing the legal thing whether or not you're gonna get sued" (or is that "ethical"? I always get those two confused ), then the court's determination means everything

If you're leaving the domain of law entirely and talking about a less tangible "respect" for innovators, then you must also concede a respect for the resourceful individual or community that takes a skill- and labor-intensive production concept and adapts it to better meet the needs and means of another market. You're siding with one inventor in exclusion of the other. I'm saying "let Ernie Emerson have his market, and the zip-tyers have theirs".

 

[Diamond Cut II]

I put a ziptie on my Delica. Am I going to be sued now? Is everyone who does this going to be sued? Why not find the person who came up with this idea and sue him? It is a silly debate and, IMO, a waste of time arguing about it. It's homemade and we're not selling it for profit. It's for our own personal use, we're not claiming that we invented the whole wave feature are we? We do give credit to Mr Emerson by saying that a ziptie on your spyderco will "wave" open your knife. It seems that you, No Avatar, are the only one who has a problem with this. C'mon, you know you want to wave your Spydie . I find it to be very handy when you need a knife fast. I say, if you can't afford one, make one!

 

[No Avatar]

Positive claimant? Pascal's Wagner? Fallacies? I limited the free exchange of ideas by voicing my own opinion? I must confess that I'm a little vague on some of what you said.

In any event, I didn't ignore your point about how the dictionary defines the appearance of a hook I said that patent law only considers the function of elements of a claim, not their appearance. I am applying different definitions to the words of the patent as a result, not necessarily broader ones. And, just because the patent was written in such a way as to exclude certain things that can be added to the blade after it is machined or forged or whatever, doesn't mean it is meant to exclude all such attachments.

I take moral to mean "doing the right thing," which often compels a level of concern above and beyond what the law requires. And, sorry, but in my eyes, copycats are not inventors. I can respect someone who legitimately sets out to design around a patent claim and succeeds in doing so, but in a case where people didn't even know what the patent said, and then try to justify doing substantially the same thing in substantially the same way as the patent lays out, then I don't have respect for that. I'm not saying the zip-tie thing isn't clever, only that it is not an invention.

I might be the only vocal one about this here, but I know I'm not the only one that has a problem with it. There were almost 3000 patent cases filed last year. I bet at least half of those people care just as much as I do about respect for patents.

 

[Sal Glesser]

Wow, this thread seems to be getting "warm". I'm going to have to go through each post carefully and see if I can "catch up".

However, I made a comment earlier in the thread, regarding other companies and whether or not one might be sued.

It was suggested to me by a forumite that perhaps I should not be making comments in that area. I decided that the advice was sound. I thank the forumite for the email and I have edited out the statement.

sal

 

[Grover_Cephas]

Positive claimant? Pascal's Wagner? Fallacies?...I must confess that I'm a little vague on some of what you said.

I'm sorry; you presented yourself as having a greater-than-average understanding of patent law, so I assumed your background would have included some knowledge of logic and debate. Those terms are fairly common in debate, so I assumed you'd be familiar with them. My bad. They're much less common outside of that environment.

The positive claimant is one who brings forth a new idea, and thus bears the burden of proof in the matter. Since I was using the literal meaning of the patent and the words in it, and you were proposing alternative definitions, I considered you the positive claimant. You said that I was begging the question. But saying "I find your alternative definitions unconvincing, so I'll stick withthe established definitions" ain't begging the question.

Pascal's wager is an old, badly flawed argument for faith in God that gets trotted out frequently by well-meaning religious people. Your statement had some superficial similarities to it, and I found that funny. I'm the _only_ one who found it funny, evidently, but whaddayagonnado?

A fallacy is a statement that's logically invalid. It's usually very satisfying, though, and leaves the _impression_ that a point has been answered, without actually answering it. For example:

"You told the people of this country and the world that Iraq had stockpiles of WMDs ready to be deployed against the US on 40 minutes' notice, and that roving workshop-vans were being used to build WMD's under weapons inspectors' noses. Don't you think that was an unacceptable way to get support for a war?"

"What, are you saying we'd be better off with Saddam Hussein in power?"

I limited the free exchange of ideas by voicing my own opinion?

I don't want you to think for a minute that that's what I meant. Your claim from the beginning, unless I misunderstand, was that people shouldn't discuss the zip-tie trick because it violated Emerson's patent. You then said that there was no harm done if we assumed you were right and you turned out to be wrong. I was pointing out that if we took that advice, it'd limit the free exchange of ideas (by morally outlawing anything that might possibly conflict with a possibly over-broad interpretation of a patent).

I said that patent law only considers the function of elements of a claim, not their appearance.

Cite, please? I took it on faith that that was the case, back when I thought you might be related to a patent attorney.

And, just because the patent was written in such a way as to exclude certain things that can be added to the blade after it is machined or forged or whatever, doesn't mean it is meant to exclude all such attachments.

Maybe it isn't _meant_ to, but if the patentor neglects to define those things he doesn't want to exclude, that's exactly what it _does_.

And, sorry, but in my eyes, copycats are not inventors... I'm not saying the zip-tie thing isn't clever, only that it is not an invention.

In your eyes.

 

[Sal Glesser]

I have seen and have been involved in the "Forum Legal Debates". Different opinions is why we have lawyers, courts, trials, judges, stenographers, etc.

If all of this could be avoided by solving the legal problems on the forums, we could save tons of bread.

Even lawyers, courts, etc. do not make something "right". That's an entirely different argument.

Great mental excercise, right?

BTW, I've seen zip ties on Spydercos since the mid eighties.

I've seen home made "notches" cut into blade spines (for rapid opening) since the fifties. I've done it myself on fruit knives in the mid 50's.

Great mental excercise, right?

sal

------------------------------------------------------

"All good, just different"

 

[No Avatar]

Cite, please?

From KEMCO SALES, INC:

"Under a modified version of the function-way-result methodology described in Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 608, 85 USPQ 328, 330 (1950), two structures may be "equivalent" for purposes of section 112, paragraph 6 if they perform the identical function, in substantially the same way, with substantially the same result."

Similarly, from Unidynamics Corp. v. Automated Prods. Int'l, Inc.:

"A doctrine of equivalents analysis 'often turns on whether the accused device performs substantially the same function, in substantially the same way, to achieve substantially the same result.' "

Finally, and most informative, from Badowski v. U. S.:

"Courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for--indeed encourage--the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other world place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system."

 

[Parallax]

No Avatar, rather than center arpund the argument of equivalents, I suspect the resolution of the impasse you have with grover cephas lies rather in the question of hwat is the state of the art circa the date of the WAVE patent? Sal Glesser's previous post on notches and zipties existing yonks before the Emerson patent seems to me to put the death knell on the argument that morally, Emerson's patent claim should include hook-like equivalents like zip ties. In fact, if zip ties have been used for such a purpose before the patent, it would be morally wrong and legally incapable for the patent owner to try to enforce it againat ziptying members of the knife community.

That's my 0.02 cents worth, anyhow, but what do I know, eh?

 

[stevekt]

No one is going to get sued for putting a zip tie on their Endura. You could probably walk up to Ernie Emerson and his lawyers at a knife show and show him the knife and he'll likely smile and say, "neat-o".

 

[KeithAM]

Assuming Sal is right, the zip tie on a Spyderco is "prior art." As such, it cannot violate the Emerson patent.

Oops! I said I wasn't going to post on this thread again. So never mind what I just said (probably good to do that in most cases anyway)!

 

[madhaha]

You'd have to prove it in court Probably with something a bit firmer than "Sal said he saw some in the 80's!"

Of course this is silly because this is never going to reach court and this is a silly thread and I'm going to shut up now :X

 

[Grover_Cephas]

Thanks for the cite. Very interesting stuff.

I think I understand your point far better than I have till now. On the face of those citations, it seems that you may be right as far as definitions are concerned. But I still have some reservations...

What's the precedent for the application of "substantial"? Can a device that's many times more economical and adds the material benefit of reversibility be called "substantially equivalent"? The Badowski v. US case was decided in 1958; has it been since clarified? What was the matter of the case (Google's been unhelpful)? How does the wording of patents become such a crucial element in litigation if the Doctrine of Equivalents can be so broadly applied? Can it really be used to cover devices that simply don't meet the described parameters of the patented device (a "hook-shaped projection" that's "formed as part of the blade"? What happens when a patentor specifically writes his patent to protect a specifically shaped device ("a hook-shaped projection")? The Badowski v. US case was decided in 1958; has it been since clarified?

Your cites are illuminating, and I appreciate them, but they're slightly at odds with my (piecemeal) understanding of patent litigation. Do the court opinions in these cases fully reflect the application of patent law?

 

[Esav Benyamin]

No one is going to get sued for putting a zip tie on their Endura. You could probably walk up to Ernie Emerson and his lawyers at a knife show and show him the knife and he'll likely smile and say, "neat-o".

I bought a Cold Steel Ti-Lite, the stiletto with ridges on the guards. By raking the ridged guard against a pocket (or a table or a forearm) the blade was levered open -- "waved". I showed it to Ernie Emerson himself and he laughed and shrugged.

Guards have been found, even on folding knives, for years. Any such guards or flippers, like those on the CUDA Maxx series, can be used to lever a blade open.

"Patent" comes from the Latin word for "open". It was meant to open up a secret, proprietary process to the world, so others could investigate and improve on it. In return for allowing others to advance their understanding, the inventor awarded the patent was guaranteed a period of time during which only he would profit from it, then it would become public knowledge for public use.

Ernie patented a concept already in use by specializing on its form and defining its purpose. The concept of a patent encourages other inventors to achieve similar results as long as they respect his rights to the specific, seminal idea.

Zip-tie your Spydies!

 

[KeithAM]

Grover, I wouldn't use 1950s case law for the doctine of equivalents. The U.S. Supreme Court modified the test within the past several years, as recognized by the D.C. Circuit Court of Appeals. The doctrine of equivalents is applied narrowly, not broadly. Email me after tomorrow for cites.

Also, don't discount that the Emerson patent could be invalidated under the concept of obviousness, in light of previous use of notches, zip ties, etc. to accomplish the same function.

But let's real about the moral issue, shall we? Emerson applied for his patent in November 1997. As Sal states, people have been putting zip ties on Spydercos since the mid-1980s. So, how can putting a zip tie on a Spyderco be "stealing" anything from Emerson? Answer please?

Now I'm really done.

 

[Parallax]

I agree with Keith Mayton's post - hit the nail on the head.

 

[No Avatar]

Grover,

Conferring additional benefits on an infringing product cannot change the underlying fact that it infringes. In fact, you could go as far as patenting an improvement, and still be unable to utilize if there is any underlying infringement of earlier patents.

As far as 1950's case law goes, some stretching back to the turn of the 20th century is still viable. However, the quote cited from Badowski is not a test for infringement, it is a statement of policy behind the application of the doctrine of equivalents and as such, still survivies. The Federal Circuit (the only appellate court for patent cases) and the U.S. Supreme Court (the only avenue of appeal from a Federal Circuit case) are always revising the specific tests for application of the doctrine based on any number of factors present in the history of the patent that is being examined, the wording of its claims, and the product accused of infringement. However, the "substantial" test survives and remains the benchmark for measuring equivalents.

All of my comments so far have only concerened infringement. I have presumed the validity of the patent based on the fact that it was issued by the Patent Office. I cannot comment on its actual validity, because I don't know anything about the history of knives and their usage. I can say that people here have raised some serious questions about it, but that no one has yet had it rendered it invalid (and therefore unenforceable) via the patent office or in a court. So, it is still legally wrong to infringe. However, validity changes the focus of the moral debate into whether it is right to infringe an unenforceable patent. Before you answer, consider this: the first Spyderco patent arguably disclosing the round hole expired in 1999 (No. 4,347,665). It is, thus, unenforceable. Is it morally right for manufacturers other than Spyderco to sell knives with round holes?

 

[jestyr]

now where did i put that "dead horse" emote?

 

[Parallax]

IMHO whether copying a patent is morally right or not depends on whether it is legally enforceable or not. If it has expired or is unenforceable, then it is not immoral to copy it. IMHO no man has an inviolable claim on his ideas - patent law gives him a restricted right if he qualifies. If he doesn't or if it has expired, that's it and it's an open playing field from that point onwards. To give someone an unrestricted right will stunt innovation and the overall good...

 

[KeithAM]

OK, I'm never really done.

I retract my statement about not relying on 1950s case law. The Graver decision on the doctrine of equivalents is still good law. Nonetheless, Grover is only a starting point -- it's worth noting that in 1997, while upholding Graver, the U.S. Supreme Court, in Warner-Jenkinson (520 U.S. 17, 29) cautioned that the doctrine of equivalents should not be applied too broadly. See Johnson & Johnson, 285 F.3d 1046, 1056-57 (Fed. Cir. 2002). The Court clarified that too avoid an overly broad application, the doctrine requires an equivalent for each and every element of the claim.

It's entirely possible that Emerson (really his patent attorney) narrowed his claim to a protrusion that is "formed" as part of the blade for the very purpose of avoiding the prior art, i.e., the zip-tied Spyderco.

Aside from the legal issue, No Avatar, you also raised this as a moral issue. How do you answer this question: given that putting zip ties on Spydercos has been done since the mid-1980s, and Emerson applied for his patent in 1997, how is putting a zip tie on an Endura today stealing Emerson's idea?

 

[Grover_Cephas]

Hokay, so this's turned into a fairly precise discussion of patent laws, and I think I may be in out of my depth. As far as I'm concerned, this all boils down to two principles: does a zip-tied Spyderco meet the definitions laid out in the patent (I'm just about certain it doesn't), or is it "substantially" similar to the Emerson Wave feature, legally speaking (my _opinion_ is that it's different enough in practice to differentiate, but I'm not remotely familiar enough with the legal precedent to make that statement with certainty).

As for morality, we have a difference of opinion regarding the "value" of the innovations in question. And there's some doubt as to who exactly is copycatting whom.

My essential stance through all of this has been that the case for copyright infringement isn't strong enough, in my opinion, to restrain discussion of the technique on this forum, and that's still my opinion. It isn't yours. That's cool; if we all agreed, this place'd be boring as hell

So in the future, feel free to remind people that you think it's morally dubious to copy Ernie's technique, and I'll feel free to point 'em to this discussion. And they'll get tired of slogging through it after the first page, and go ahead and do whatever they were going to do in the first place.

Before you answer, consider this: the first Spyderco patent arguably disclosing the round hole expired in 1999 (No. 4,347,665). It is, thus, unenforceable. Is it morally right for manufacturers other than Spyderco to sell knives with round holes?

I'd just like to point out that other manufacturers don't refrain from using round holes out of respect for Spyderco's innovation, but because it's still protected. It's currently protected under trademark law, not patent law. This is why it's such a big deal for Spyderco that _none_ of their folding knives be manufactured without a round hole, and that every effort be taken to fight infringement.

See this thread on the BM Blackwood Skirmish.