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Waving Spyderco Knives - Without Machining
- Thread starter Wrangler
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Wrangler said:Wow, and all I wanted to do was share a cool way of opening a knife.
No worries. Not only did you share a cool trick, but you (unintentionally, perhaps) spawned an extremely interested thread.
Joe
Keith Mayton said:
Presuming that zip-ties on Spydercos actually meet the high standard for prior art to Emerson's patent, then it would be morally wrong to try and take back from what was in the public domain prior to the Wave patent being applied for. However, this depends on the degree to which it was in the public domain - i.e. was it actually known, published and/or disseminated in the public. Some guys somewhere zip-tying their spydercos does not make for prior art because of the problems of proof. Generally the key is publication in some form. If the zip-tie trick was published (anywhere in the world) in a form available to the public more than one year prior to Emerson filing his application (the standard for prior art) then it is certainly prior art. But if it wasn't, then more facts about the knowledge of this trick is necessary before it legally and morally impacts the patent. If it comes to light that it was widely known enough to satisfy the age-old patent standard that "one of skill in the relevant art" would have known of it prior to Emerson's discovery, then the first sentence of this paragraph applies.
NOTE: The above does not change my position on infringement. As I've said before, I think the function of the zip-tie and the wave (as described in the patent's claims) are identical and that's the fundamental standard for infringement under the doctrine of equivalents.
As far as any copying of the round hole design goes - I was not aware it was protected by trademark (actually "trade dress" as a trademark is limited to printed language and designs). That information kind of ruins my attempt to set up a parallel debate, but doesn't change my opinion as to whether it would be wrong to copy it. As I've said before, I think copying others' unique ideas is wrong, even if unprotected. This is especially true when that idea has been established in a market, which, suspiciously, are always the ideas people are looking to copy. I think it would be dumb not to take the extra step of obtaining legal protection on a design to the extent allowable, but only because it makes eliminating copycats easier, not because it enhances your moral position. I do believe, however, that in a perfect world, patents, trademarks and copyrights wouldn't be necessary as designs and inventions would be given the respect as a matter of course.
Now, of course, this does not address the recent debate over whether trade-dress protection should be extended to functional elements of a design, because that's a different can of worms entirely.
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A person shall be entitled to a patent unless--
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, . . .
35 U.S.C. s 102(a) and (b). For prior art to anticipate because it has been "used," the use must be accessible to the public. Woodland Trust, 148 F.3d at 1370, 47 USPQ2d at 1365. Public use under 35 U.S.C. § 102(b) includes any use of the claimed invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor. Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 1321, 63 USPQ2d 1580, 1583 (Fed.Cir.2002). I think we can safely assume that people who zip-tied their Spydercos in the mid-1980s were not doing so in secret. I wouldn't doubt that this was openly done at trade shows at one point or another at least one year before Emerson's patent.
Sal's personal observation of the use of zip-tied Spydercos in the mid-1980s would be deemed "direct evidence" of the existence of the same. Sal would be a "disinterested person" in any patent dispute (i.e. he's not personally trying to claim the invention or invalidate Emerson's patent, and even though he's a competitor, he's willing to pay the license fee to Emerson). Direct evidence in the form of testimony from a disinterested witness is generally considered to be a strong form of proof, especially if it is uncontroverted. Even if Sal is an interested witness, presumably Sal would not have been the only person to have observed the zip-tied Spydercos in the mid-1980s. Hence, there are no "problems of proof."
No Avatar, you still haven't answered my question: if zip-tied Spydercos existed before Emerson's patent, how is zip-tying a Spyderco today "copying others' unique ideas?"
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, . . .
35 U.S.C. s 102(a) and (b). For prior art to anticipate because it has been "used," the use must be accessible to the public. Woodland Trust, 148 F.3d at 1370, 47 USPQ2d at 1365. Public use under 35 U.S.C. § 102(b) includes any use of the claimed invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor. Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 1321, 63 USPQ2d 1580, 1583 (Fed.Cir.2002). I think we can safely assume that people who zip-tied their Spydercos in the mid-1980s were not doing so in secret. I wouldn't doubt that this was openly done at trade shows at one point or another at least one year before Emerson's patent.
Sal's personal observation of the use of zip-tied Spydercos in the mid-1980s would be deemed "direct evidence" of the existence of the same. Sal would be a "disinterested person" in any patent dispute (i.e. he's not personally trying to claim the invention or invalidate Emerson's patent, and even though he's a competitor, he's willing to pay the license fee to Emerson). Direct evidence in the form of testimony from a disinterested witness is generally considered to be a strong form of proof, especially if it is uncontroverted. Even if Sal is an interested witness, presumably Sal would not have been the only person to have observed the zip-tied Spydercos in the mid-1980s. Hence, there are no "problems of proof."
No Avatar, you still haven't answered my question: if zip-tied Spydercos existed before Emerson's patent, how is zip-tying a Spyderco today "copying others' unique ideas?"
Sal Glesser
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Hey No Avatar.
"As I've said before, I think copying others' unique ideas is wrong, even if unprotected".
Shows a lot of class in my mind.
sal
"As I've said before, I think copying others' unique ideas is wrong, even if unprotected".
Shows a lot of class in my mind.
sal
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I hope we can all agree that being legally right does not ensure being morally right. There's a lot of legal activity that's immoral. So, here's a curveball for you: Even if Emerson would prevail on the patent issue (which I don't concede for a second), it would be morally wrong for him to sue people who zip tie their Spydercos, because the idea of zip-tying a Spyderco arose before Emerson's Wave.
Similarly, if Emerson was aware of the zip-tied Spydercos before he filed for his Wave patent, was it morally wrong for him to copy others' unique unprotected (and indistinguishible according to No Avatar) ideas by monopolizing them with his Wave patent?
But most of all I'd like a straight answer to my original question, stated in my last post. No Avatar, I recall that when no one proptly refuted one of your points, you declared it conceded. Should I do the same?
Similarly, if Emerson was aware of the zip-tied Spydercos before he filed for his Wave patent, was it morally wrong for him to copy others' unique unprotected (and indistinguishible according to No Avatar) ideas by monopolizing them with his Wave patent?
But most of all I'd like a straight answer to my original question, stated in my last post. No Avatar, I recall that when no one proptly refuted one of your points, you declared it conceded. Should I do the same?
First off - Sal, thanks for the complement, it actually made all of this worthwhile.
Keith,
I think I did answer your question in my last post, but in case I was a little obscure I will clarify:
Zip-tying a Spyderco today to "wave" it, especially when popularizing it as such, is literal copying of the highest order. I mean, no one who is doing so is suggesting that they discovered this independently of Emerson's wave are they? The title of this thread and others like it would suggest that they are not. But, that's an easy answer to a restated question. I think your true question involved a murkier set of facts than that.
If I am not mistaken your original question is closer to, "how are people, who have learned of the zip-tie trick through word of mouth to some degree stemming from its original discoverer, copying Emerson's unique idea?" In answer to that question I offer this restatement of my previous post. If it can be shown that the trick was in the public domain prior to Emerson's filing, then the idea of a folding knife opening on the draw was not Emerson's unique idea. However, if it was not in the public domain, and Emerson independently discovered it while trying to come up with a "blade catcher" for a fighting knife, then it is his unique idea, and he rightly patented it. Two people can come up with the same idea at two different times. It's nearly impossible to prove this, however, so we resort to a showing that the first time was not in the public domain in order to suggest that the second couldn't have heard of it when he was doing his work. We both agree that this is an evidentiary question rather than a true moral one. However, while Sal's personal observation is evidence of the zip-tie trick's existence, his statements to date are not conclusive evidence of its widespread knowledge. Your prior post makes a lot of assumptions about where and how he observed the zip-tie trick. Assumptions are not facts. Sal simply said he saw it in the 80's. He didn't really explain how, where or how often. If it were inside of Spyderco and nowhere else (and I'm not suggesting that it was), that cuts against it being in the public domain. If others saw it, that strengthens the case that it was available to the public. As I said, I have no information about the validity of the patent or the state of the art in the knife industry in the 80's. Therefore, I'm not in a position to comment on how validity really impacts on the morality of copying other than in the sense of an if...then context. If zip-tying was truly public prior to the patent, then to do so now is not copying. If it was not public, then to do so is copying. There is one important caveat here. Even if zip-tying was NOT public knowledge, but Emerson himself knew of it, that one fact renders the whole debate moot. You can never claim someone else's invention as your own in a patent. You can buy it, license it, etc., but you cannot claim you invented it and you definitely can't hide the fact from the Patent Office that someone else beat you to the punch in coming up with your own invention before you did.
Finally, I will note that I declared my point on functioning conceded because no one has offered anything other than attacks on the validity of the patent, (i.e. it's originality) and on the appearance of the wave vs. the zip-tie, but no one had offered any evidence that they function differently. I don't think I was being hasty, I mean, it's been two weeks and still no one has come forward with anything. It would lead one to reasonably believe that they have not because they cannot, wouldn't it?
Keith,
I think I did answer your question in my last post, but in case I was a little obscure I will clarify:
Zip-tying a Spyderco today to "wave" it, especially when popularizing it as such, is literal copying of the highest order. I mean, no one who is doing so is suggesting that they discovered this independently of Emerson's wave are they? The title of this thread and others like it would suggest that they are not. But, that's an easy answer to a restated question. I think your true question involved a murkier set of facts than that.
If I am not mistaken your original question is closer to, "how are people, who have learned of the zip-tie trick through word of mouth to some degree stemming from its original discoverer, copying Emerson's unique idea?" In answer to that question I offer this restatement of my previous post. If it can be shown that the trick was in the public domain prior to Emerson's filing, then the idea of a folding knife opening on the draw was not Emerson's unique idea. However, if it was not in the public domain, and Emerson independently discovered it while trying to come up with a "blade catcher" for a fighting knife, then it is his unique idea, and he rightly patented it. Two people can come up with the same idea at two different times. It's nearly impossible to prove this, however, so we resort to a showing that the first time was not in the public domain in order to suggest that the second couldn't have heard of it when he was doing his work. We both agree that this is an evidentiary question rather than a true moral one. However, while Sal's personal observation is evidence of the zip-tie trick's existence, his statements to date are not conclusive evidence of its widespread knowledge. Your prior post makes a lot of assumptions about where and how he observed the zip-tie trick. Assumptions are not facts. Sal simply said he saw it in the 80's. He didn't really explain how, where or how often. If it were inside of Spyderco and nowhere else (and I'm not suggesting that it was), that cuts against it being in the public domain. If others saw it, that strengthens the case that it was available to the public. As I said, I have no information about the validity of the patent or the state of the art in the knife industry in the 80's. Therefore, I'm not in a position to comment on how validity really impacts on the morality of copying other than in the sense of an if...then context. If zip-tying was truly public prior to the patent, then to do so now is not copying. If it was not public, then to do so is copying. There is one important caveat here. Even if zip-tying was NOT public knowledge, but Emerson himself knew of it, that one fact renders the whole debate moot. You can never claim someone else's invention as your own in a patent. You can buy it, license it, etc., but you cannot claim you invented it and you definitely can't hide the fact from the Patent Office that someone else beat you to the punch in coming up with your own invention before you did.
Finally, I will note that I declared my point on functioning conceded because no one has offered anything other than attacks on the validity of the patent, (i.e. it's originality) and on the appearance of the wave vs. the zip-tie, but no one had offered any evidence that they function differently. I don't think I was being hasty, I mean, it's been two weeks and still no one has come forward with anything. It would lead one to reasonably believe that they have not because they cannot, wouldn't it?
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We all hope this is my final post on this. :yawn:
I personally don't think that putting a zip tie on a Spyderco is morally wrong or illegal. I have two alternative reasons for this, one of which must be correct, IMO. First, I don't think the zip tie infringes. Second, if the zip tie is equivalent and infringes, then it constitutes prior art that anticipated Emerson's Wave.
I found caselaw that says that each and every element of the claim must be equivalent, which I don't believe to be the case here. I think the hook shape is a funtional element. A hook will generally catch better than a zip-tie block shape (or at least is meant to), hence the hook is a funtional element of the invention. The same is true of the "formed" element. It is funtional in that it results in the strongest possible structure, or at least a structure that doesn't shift as zip ties do. Neither of these functional elements are present in the zip tie. (Another way to view these elements is that they are limitations. See Dolly v. Spalding & Evenflo, 16 F.3d 394, 398 (Fed. Cir. 1994)).
If, however, the zip tie is truly equivalent, then it constitutes prior art that anticipated the Wave. For me, Sal's word on seeing the zip tie use in the mid-1980s is clear and convincing evidence (the standard in patent cases) of that prior art. And I'm fairly sure Sal is not the only person to have seen the zip-tie use prior to 1996. I also would not assume that Sal's viewing of the zip tie was in secret. If you read the Netscape case, you'll see that public domain for purposes of 35 U.S.C. s 102(b) does not require widespread knowledge. An even better case is Baxter Intern. v. Cobe Lab., 88 F.3d 1054, 1058 (Fed. Cir. 1996)(observation of centrifuge by undisclosed number lab visitors constituted public use). In any event, if Emerson's invention is truly nothing more than using a protrusion on the blade spine to open the knife, then that invention simply did not originate with Emerson. If this is so, then he doesn't have an "unique idea" for anyone to steal or copy, regardless of the zip tier's motive or terminology.
In sum, I'm still unpersuaded that the zip tie is equivalent as to each and every element of the Wave. If I'm wrong on that point, and the zip tie is similar enough to the Wave to infringe, then it's also similar enough to constitute prior art. In either case, the zip tie does not run afoul of patent law, nor is its use morally wrong.
Lastly, No Avatar, thank you for explaining your position in a way that's clearer to me.
I personally don't think that putting a zip tie on a Spyderco is morally wrong or illegal. I have two alternative reasons for this, one of which must be correct, IMO. First, I don't think the zip tie infringes. Second, if the zip tie is equivalent and infringes, then it constitutes prior art that anticipated Emerson's Wave.
I found caselaw that says that each and every element of the claim must be equivalent, which I don't believe to be the case here. I think the hook shape is a funtional element. A hook will generally catch better than a zip-tie block shape (or at least is meant to), hence the hook is a funtional element of the invention. The same is true of the "formed" element. It is funtional in that it results in the strongest possible structure, or at least a structure that doesn't shift as zip ties do. Neither of these functional elements are present in the zip tie. (Another way to view these elements is that they are limitations. See Dolly v. Spalding & Evenflo, 16 F.3d 394, 398 (Fed. Cir. 1994)).
If, however, the zip tie is truly equivalent, then it constitutes prior art that anticipated the Wave. For me, Sal's word on seeing the zip tie use in the mid-1980s is clear and convincing evidence (the standard in patent cases) of that prior art. And I'm fairly sure Sal is not the only person to have seen the zip-tie use prior to 1996. I also would not assume that Sal's viewing of the zip tie was in secret. If you read the Netscape case, you'll see that public domain for purposes of 35 U.S.C. s 102(b) does not require widespread knowledge. An even better case is Baxter Intern. v. Cobe Lab., 88 F.3d 1054, 1058 (Fed. Cir. 1996)(observation of centrifuge by undisclosed number lab visitors constituted public use). In any event, if Emerson's invention is truly nothing more than using a protrusion on the blade spine to open the knife, then that invention simply did not originate with Emerson. If this is so, then he doesn't have an "unique idea" for anyone to steal or copy, regardless of the zip tier's motive or terminology.
In sum, I'm still unpersuaded that the zip tie is equivalent as to each and every element of the Wave. If I'm wrong on that point, and the zip tie is similar enough to the Wave to infringe, then it's also similar enough to constitute prior art. In either case, the zip tie does not run afoul of patent law, nor is its use morally wrong.
Lastly, No Avatar, thank you for explaining your position in a way that's clearer to me.