Opinion or advice sought on IPR and patent law

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GreenWood
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Opinion or advice sought on IPR and patent law

Post by GreenWood »

Hello all.

I have invented a new kind of key system, which is still in trial but looks like it will be workable, and which would provide answers to various difficulties in flute construction as well as easy access to chromatic scale on a keyless flute. I don't say it will revolutionise flute construction, I don't claim any level of perfection regarding player suitability because it is still in trial, but it is an interesting new direction with much possibility.

It might be thought I am writing this to sell the idea. That is not the case, but that I have run into ethical difficulty. I am not a great fan of patent and intellectual property rights. On the one hand I understand the desire to protect investment in any production direction, on the other I personally don't claim ideas I come up with as my own, really. They are more like "found", and I am usually just happy to share them. I would like to do so with the new key system, but I do not know how the law works with regard. For example, if I just publish an idea, would someone be able to take the idea and patent it themselves, restricting access to other makers ?

My intention is to make this idea freely available and of free use to all small makers, to non corporate makers. As the corporate big boys might invest considerable sums in research and tooling for a product line, I would expect they would want to ensure they have unlimited right to use of a concept before investing in that direction. That is fine by me also. Corporations live in a sort of parallel business environment that is highly competitive and legally orientated if not enshrined, and with great attention to reputation in that respect, I expect they would seek formalisation. That would be a cost to me, because formalisation in legal terms is not trivial, would demand my time and participation.

I would also feel really stupid if in formalising a patent of some kind, whether with or without my permission, corporate makers then gained some leverage over smaller makers on use of the design.

So how do I go about this best. I really don't make great claims to how good the key system will be, I just recognise it has potential. I don't seek vast reward, recognition, or influence, but if larger commercial enterprise wants to free itself of obligation or restriction in its own legal environment so as to profit, I would expect any to pay minimally for the direct cost to myself of allowing that. Alternatively I will be thinking that they might be thinking that I am a liability to their success or a potential future cost to them, not a position I wish to be in.

In other words, if there was no IPR or patent law, none of this would be a problem.

Well, I know various readers have some experience in these matters. I will not hold anyone to what they write as having offered legal advice or as for being responsible for any eventual choice taken, it is just to try to orientate myself on the topic, to see if any good ideas are offerred, and so on.

With thanks in advance.
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Re: Opinion or advice sought on IPR and patent law

Post by joneill »

You did not mention which country you are in. The USA is a first-to-file system. So, yes, my understanding is that someone else could file if you do not and claim ownership (this change happened after I graduated law school and I do not practice in patent law).

https://www.uspto.gov/patents/first-inv ... 20directly.
GreenWood
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Re: Opinion or advice sought on IPR and patent law

Post by GreenWood »

Thank you joneill , that meant a lot to me because I litterally did not know where or how to start understanding the existing layout. It set me in good direction. I am in Portugal but the question was really not country specific.

I am surprised at how the law is arranged. It seems:

1. "The first-to-file system is used in all countries."

https://en.m.wikipedia.org/wiki/First_t ... 0invention.

That text is complex, there is a certain leeway in the US for inventors, but in practical terms it is pretty much who asks for patent first.

2. Any patent is valid only for that country , there is a European region patent also.

3. Depending on the kind of patent, it lasts 15 or 20 yrs usually.

4. The cost is prohibitive for the little guy, online estimates are 5000 to 50 000 etc. depending on how much work the individual puts in themselves. In the US there is a pro bono system, and provisional patents, which are probably more accessible, but likely as overall complex.


On the positive side of all of that, it is not likely any company will try to secure a wide-ranging multinational patent on something like flute keywork. If a large company likes the idea they might for their main market though.

So that leaves me back at square one.


I will say how that all seems to me. It seems it discourages the sharing of ideas. If I provide an idea for anyone to use freely, and a company takes the idea and patents it, they stop others being able to use that idea. That is theft, not protection.

What I will do is that I will publish the idea, because I would like to make it available for others to make use of, if they see it as fit. I will attach some very clearly understandable text alongside the design to orientate any company that would try in any way to restrict use of the idea by small business and individual makers by their claiming ownership of the concept. I might understand a larger company wanting to establish production and guarantee market, but in fact the reasonable evolution from a customer perspective is to have companies adapt to market demand in open competition, not by having them trying to monopolise supply. A free flow of information is more beneficial for the evolution of any design also, compared to a freeze on that to suit a market strategy, which is not acceptable either if it is at the expense of restricting small scale or individual makers in their own pursuits and offer, those also often being their livelihood.

As holder of the invention I have the authority to express those wishes and to expect them to be respected , because nothing will take place otherwise. There is no law able to overcome that, and so all related law is by logic subsidiary, and therefore would seem merely an attempt at enabling graft and monopoly, if not actually being purposefully designed to stifle new endeavour.

My advice to lawmakers. If you want to interfere in the free exchange of ideas on the grounds of verifying their "ownership", and so to attribute "rights", your service should also be free, so as not to exclude certain and benefit others. The first to file approach would seem orderly, if it were straightforward and easily accessible. I don't see any wider benefit in trying to control who is allowed to make what. I do think it fair that inventors are able to benefit from profits achieved using their ideas, if they so choose to be rewarded.

I leave the topic with a patent fee sheet from Europe

https://www.epo.org/law-practice/legal- ... e2/p1.html

It is what you have to pay bureaucrats to make sure that they don't act on someone else's behalf to deny others the use of a new idea you have provided them with for free use.

It seems very corrupt.


We are talking design ideas here, not trademarks, product names, or artistic content. The patent process was supposed to protect and ensure reward to inventors (if they so sought reward). In other words to enable an inventor to sell an idea without losing the originality of the idea due to copying by those the idea was simply presented to, for example.

Even now, I am imagining examples where someone else has also invented the same idea independently but not filed it due to cost, now watching their private project being released to the public. I am imagining someone inventing the idea anew even, and finding it already "owned" , that being first come first served and so forgiveable I suppose.

So, what is the answer to this confusion ? I think that first presented rather than first filed is the most valid. Apart from contest where it is claimed that an idea has been taken and presented by another before an inventor has managed to publicly present that idea, in which case the original inventor must prove somehow that he in fact did present the idea first to the later public presenter, or had it taken by them, what is the difficulty or cost in the following :

Create a searchable database where all new concepts are presented by inventors at absolutely minimal cost (no fee), which includes as much detail, drawings and so on as an inventor is able or willing to provide , especially any singular concept to the invention, and where comparison of replica is possible, and so by date of presentation also. That database would then stand as owning the right to apply for patent, so denying others the right to patent . If a company wanted to further use an idea with unique patent privileges applied, it would have to organise full patent with the inventor. If the inventor wanted to stop others using the idea, he would be obliged to apply for full patent also, at his own cost. The incentive would be for companies looking to secure rights to production to arrange patent with the inventor, and that arrangement would therefore only be on terms that also suited the inventor.

I guess that would be just too simple and straightforward though, for some.
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Re: Opinion or advice sought on IPR and patent law

Post by David Cooper »

So far as I'm aware, the first to file gets the patent, but only if the idea isn't already out there. The patent collapses if it can be shown that someone else had already put the idea up in the public domain, so it should be sufficient just to post the idea to a forum like this and to get a time and date stamp on it, so long as there is no way to edit it afterwards without that tampering being recorded and indicated. Clearly it's best to post the same information in multiple places so that if one site disappears you have copies in a host of others.

https://en.wikipedia.org/wiki/Prior_art

https://en.wikipedia.org/wiki/Internet_ ... _prior_art

An idea can't be patented if it isn't new, unless it's been kept secret - a company could use an idea for a hundred years without revealing its use of it and then have another company patent the idea and potentially prevent them from using it. If it isn't secret though and becomes widely known public knowledge, any attempt to patent it should fail, and even if the patent is granted, it should collapse in a trial where the prior art is demonstrated. If you release your idea on a forum like this one where many flute manufacturers will without doubt see it, that should make it unquestionably unpatentable, assuming that you can't edit it after the event. The degree of interaction from other people discussing your idea would also add to the weight of its status as prior art.
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Geoffrey Ellis
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Re: Opinion or advice sought on IPR and patent law

Post by Geoffrey Ellis »

Are there any corporate makers (or even large companies) making keyless flutes? It sounds like your system is designed for conical bore (keyless) wooden flutes? If so, then there are (as far as I know) no large manufacturers of these flutes--only small-time, individual artisans. I may speak under correction here, but that's all I've ever seen. If so, then any innovation made for such flutes (and it's a very small market) is not likely to have enough potential profit to be attractive to anyone in terms of seeking a patent.

Once upon a time I had what I thought was a revolutionary idea for a system of interchangeable tenons for Boehm headjoints. As it turns out it was not so revolutionary :-). It was certainly a fairly original variation on an existing idea, but the point is that I briefly toyed with the idea of seeking a patent. I had a chat with paddler, who collaborates with me pretty routinely, and he had some experience with this (he has been through the patent process with software stuff, I believe). He gave me some solid advice, which I'll paraphrase (and if any of my understanding of the law is incomplete or inaccurate here, that's not his fault, but mine).

Basically, patents are not particularly useful below the large scale corporate level. They are expensive, to start with, both in terms of time, energy and money. And of course all of the above discussion about substantiating the originality of the idea is necessary, and making sure it's not something that someone else has thought of, etc.. But even more, the patent doesn't do anything useful for the patent holder unless they have the ability to enforce it. So you might hold the patent, but if someone violates it (i.e. steals your idea or design, tries to take credit for it, profit by it, etc.) I think your only recourse is to take them to court. Unless you are into something that generates a lot of money, it is not going to be worth it. To make someone desist in using a design you created will probably cost you a mint of money just in attorney fees, and the cost to your peace of mind might be even higher. Plus your time/energy, etc..

And this applies in reverse of course. If some other artisan takes an idea that you had and tries to patent it as a means to stop you or other artists from using the design, they would face the same hassles of enforcement. Typically only big corporations (or at least much larger companies) take the trouble over this sort of thing. I would be surprised if within the small, niche market of wooden flutes that it would be in anyone's interest to patent a new key system, regardless of how innovative it might be. Unless, of course, it is so clever and revolutionary that it transforms the world flute market and has all the Boehm flute players ditching their instruments and rushing to get a wooden, conical bore flute with the new key system :-) Again, I'm making an assumption about the type of flute you have designed this for (I'd be interested to know more).

But of course if you finalize a design and then sort of "release it into the wild" (freely publish it) I don't imagine that anyone can patent it, can they? I might be wrong about that, but presumably if you give away an idea and a bunch of people start using it, then no one is going to be able to claim it was their idea and successfully lay claim to it. I'd be interested in knowing more about that.

I think your notion of sharing an innovative idea to the "commons" to advance the craft is laudable, however.
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Re: Opinion or advice sought on IPR and patent law

Post by ryarbrough »

I’ve been a U.S. patent attorney serving individuals and small businesses for over 20 years. I’ve been a lawyer for over 40 years. If you have an invention or an ornamental design that you want to protect, I strongly recommend that you consult a registered patent practitioner (not all are attorneys) in your home country. The patent advice that you receive on an online forum such as this one is worth exactly what you pay for it.

I recommend that all of my clients and prospective clients contemplating patenting prepare a business plan to determine whether their business model is sound and can actually make money. In the U.S., your local Small Business Development Center (SBDC), funded by the Small Business Administration, is an invaluable and very low-cost resource for business planning. If, for example, the business planning process reveals that the market is too small, skilled labor too expensive, and the prospect of copying too slight to justify either opening the business or protecting the product by patent, then that’s the answer and you can make an informed decision on how to proceed with your eyes open.

On patent enforcement, the costs of going to Federal Court (in the U.S.) are daunting for the private patent owner, but those costs are also daunting for a prospective infringer contemplating infringing your patent. The existence of a patent may cause the prospective infringer to pick a softer, non-patented, target. For consumer products, there are very low-cost private patent enforcement mechanisms; namely, the Amazon.com ‘Neutral Patent Evaluation Procedure’ (Google it). A client recently launched a new patent-pending product on Amazon and dozens of copyists then flooded Amazon with hundreds of listings for copies. Within a few months after my client’s patent issued, Amazon took down several hundred infringing listings at the request of my client. My client followed the Amazon procedures but did not have to sue anyone. I understand that Alibaba has similar procedures, but have no experience with them.

Necessary disclaimer because I'm a lawyer-- I do not represent anyone who reads this post and this is not legal advice. You may not rely on it as such. If you have a specific patent situation on which you want an opinion or that you want to discuss, hire a local patent practitioner.
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Re: Opinion or advice sought on IPR and patent law

Post by GreenWood »

Thanks David.

Law is a very tricky subject, especially considering the different legal jurisdictions at work regarding patent law (depending on country or region). In short, I cannot assume publishing on the web is guarantee of protection from others patenting an offerred idea. The level of prior art search by any jurisdiction will vary for example, and possibly simple public presentation would only be taken into consideration if there were a legal challenge undertaken to the patentability of an idea by another . Obviously I do not wish to enter any kind of patent dispute. I hope that publishing the idea freely will deter anyone from seeking patent, though possibly a company about to invest in R&D might wish to, simply to avoid another later denying it use of the idea.

Geoffrey

Yes, it is more a corporate reality. The idea could be used on Boehm, feasibly could lead to a new kind of flute. Or not.

Twice so far I have seen ideas I thought up later appear on the market or in practice. The first was trivial and shared, the second was not shared but thought up later by another also... parallel or convergent evolution if you like. That one was a wing sail design for water world speed record which I drew up maybe fifteen years ago, and the Swiss (allez les Suisse) then presented it four or so years ago. My idea is still possibly slightly better :-) , I tried contacting Pete Goss at the time, and was told to contact their design team...but that reply lacked attention so I just dropped the idea. I have other ideas on other themes, but really I haven't found the environment for inventors particularly welcoming.

As you say of your own idea, we aren't in a position often to know if an idea has been thought of before, and we often aren't in a position to further develop an idea fully either. So it is a sort of uncertain limbo. There is no reason for an inventor not to celebrate an idea, even if it was thought of before... I guess that takes anyone on to studying why it was not previously adopted, and if that reason can be overcome.

Here it will take me a year possibly to tinker with the idea presented, to present a fully working but only prototype flute. It would just seem mean of me not to share the idea and allow others to work on that also if they chose...I'm not looking for profit anywhere.

Given existing law, if someone wanted patent of an idea just so they feel free to invest in the idea, and they promised not to restrict other makers in any way, then that would be fine also, they would carry the honour of owning the patent. If I could patent it myself I would, just to secure free access. I would ask token payment from corporate makers only, and without any exclusivity, because they would be those investing in production process and so are basically those asking a guaranteed right to produce to safeguard that investment as part of their legal sphere. In other words they would be asking me to go out of my way to satisfy a need of theirs (that of use, patent, or patent use), a need which to my view is otherwise unnecessary because other smaller makers I think would just be happy with as wrote.

That is how I look on it.

In "my world" I would ensure free registry of invention with unrestricted use of idea, but with a small share of any profit going to inventor by default if the inventor were to ask that, or a voluntary forward payment to waive that, and the right of inventor to simply waive any charge.



ryarbrough

Much thanks, and that speaks my own understanding at the moment, including that only an attorney or similar will be able to give advice that is reliably valid . The main main question is though, how to avoid others later claiming patent rights on a freely presented idea ?

I suppose the answer would be to patent an idea oneself, at which point it costs more than it was paid for.

It would beg the question of why there is not a simple registry system to help prevent "theft of idea". That particular theft can only take place if ownership is then validated, because otherwise the idea would still remain of free use and so worth more than what was paid for it (nothing) if it was at all useful or helpful, and so be being valued and not stolen. By that view, patent law enables the theft by enforcing exclusivity.


I also understand business investment models searching to secure outlay, marketing calculations , research costs and so on. So I suppose it will remain an argument on how those are secured or compensated via patent law without stepping on any other method of sharing of ideas. That is why I expect a two tier system would be better, where patent proper is an additional venture outside of a simple registry format I mention above. Choice of inventor would be one or other, with say a years grace to move from registry to patent before the invention were fixed in whichever category.

Just my 0 cents worth.

Thanks again.
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Re: Opinion or advice sought on IPR and patent law

Post by David Cooper »

I hadn't heard of the Amazon system for dealing with patents - that's a great advance, bringing it just about within reach of ordinary inventors, so it's good to be informed about it. Thanks ryarbrough. I'd be surprised if a significant proportion of flutes are sold through Amazon (or wingsails for that matter, which oddly enough is something I too have worked on, designing a telescopic version on an AC72-style wingsail for use on a small foiling yacht), so it's only a partial solution. We really need a complete reform of the patents system to make it more like copyright with the first to register an idea (for a modest fee) being the patent owner, and then it would be possible to team up with enforcement companies to sue people who steal ideas without paying royalties. That would be simple, but there's no political pressure to change anything other than for a tiny number of issues which dominate while everything else is neglected. We don't have real democratic control and end up stuck with bad systems for decades or centuries.
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Re: Opinion or advice sought on IPR and patent law

Post by GreenWood »

David Cooper wrote: Sun Aug 07, 2022 11:08 am
... designing a telescopic version on an AC72-style wingsail for use on a small foiling yacht....
I remember when camber inducers were first introduced for windsurfing, and how they would power up compared even to fully battened sails. I have some plan drawn up to apply that concept to a junk rig.

My idea for wingsail is closer to the Syroco at

https://www.yachtingworld.com/yachts-an ... ord-130860

which is new to me. The idea of in line symmetry is not new, it has just taken people a long while to picture solutions. Seems they are trying to work around problems of controlling foil cavitation from surface, an old problem for windsurfers also (spin out). They have a lot of designers on it so I'll leave them to it ;-) . I pictured a very fine rigid sail wing brought much further forward though due to aspect ratio, to orientate the pull more forwards. South of France and Mistral, most could only guess how cold that wind is sometimes.

I never got my own boat, an Eventide, in the water... it was for restoration, had steel punchings set in concrete as ballast but all rusted (it was steel, Kesterloo built I think) which I spent ages chiselling out, then having new keel welded up... when I was dragged off to another country. I like Dhows also, a favourite journey was on a large flat decked traditional trading Dhow.

Anyway, this is a flute forum David ... something about flutes... yes, the mast of the Eventide I had to reglue was wooden box construction, a bit like a a square flute but the spacers and reinforcement blocks inside would not allow it to play as one. Maybe if they have changed the design those would make a good bass flutes ?

(Laws don't often get reformed, they just tend to get added to.)
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Re: Opinion or advice sought on IPR and patent law

Post by David Cooper »

GreenWood wrote: Sun Aug 21, 2022 9:51 am...the mast of the Eventide I had to reglue was wooden box construction, a bit like a a square flute but the spacers and reinforcement blocks inside would not allow it to play as one. Maybe if they have changed the design those would make a good bass flutes ?
If anyone could blow it, I think the sound would be terrible. A narrow bore needs a longer flute than a wide one, and a square bore gives you both at once, so the note quality suffers. My first craft resin flute was made inside a paper tube by pouring liquid in and letting it solidify. It had a square bore at one point and sounded dire. Once it was octagonal it sounded a lot better. The next one I made had a circular (cylindrical) bore and sounds great. There is some room for variable width though, as I have a bamboo quena with an oval bore which sounds fine.

As you point out, this is a flute forum, but there's always room for fusion. A mast with holes in it could potentially be played by the wind as a flute to play tunes in infrasound for the pleasure of elephants.
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Re: Opinion or advice sought on IPR and patent law

Post by GreenWood »

David Cooper wrote: Mon Aug 22, 2022 9:59 am
A mast with holes in it could potentially be played by the wind as a flute to play tunes in infrasound for the pleasure of elephants.
Infrasound has effect on people also. Slightly above that

https://m.youtube.com/watch?v=FNpEwnofQcs

and elephants seem to approve being played to.
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