Is public posting of PM's legal?

[cgallery]

It is legal for you to post PMs. If I send you a letter I have no legal expectation of privacy once you receive it. It is yours to do with as you see fit. However, before you post the PMs I would at least try to get them to cease and desist. The threat to publish the PMs is leverage only until they are actually published.

Good point. But even if they don't agree to go away before publishing them, maybe seeing them "on the web" will make them rethink adding to the collection by writing any more E-Mail's/letters?

[JR]

Their threats wouod seem to be total hogwash to me. A discussion about a technology, even a patented one, is First Amendment right.

If you were attempting to profit from your endeavors it would be different thing. But discussing a thing, even reverse-engeering a thing for the purposes of discussion, can not be stopped by anyone.

What, exactly, would they sue you for? How can your effort to design something for your own use, and discsussing that effort with other like-minded individuals be liable for a suit?

What a joke. And what a bunch of chumps.

JR

ps I forgot about the posting of PMs part. There's nothing to stop you from publishing private corespondence. You have no prior arrangment or implication of confidentiality regarding an unsolicited communication from them. If yoiu published a PM from a member here you might hurt a few feelings, but no law is broken.

[radhak]

Ray, note that I was only addressing the legality. Decency is a different matter altogether, and all your points are both spot on and inline with my thinking. In this particular case, Phil would not run afoul of either, IMHO.

Phil, Loring's logic is irrefutable : OMS is both legally bound and allowed to defend their patent. If it comes to court, most likely you will find yourself attacking the patent itself (ie, towards overturning it) instead of simply interpreting it.

At the same time, seeing that your latest is a simple adaptation of Rockler's unit, I feel their position is feebler than before : if they sue you, then they might need to sue Rockler at the same time [ I ain't a lawyer, but I have a read a lot of fiction about the law, especially Grisham and Turow... ]

Seriously though - I get a feeling a commercial patent holder needs to pursue all possible infringements vigorously till infinitum : their revenue depends on it. That said, am not sure they'd want to go all the way to court each time. But cease-and-desist letters are always easier to send, and a must just in case the suit does happen. My personal opinion is as long as you are not making a commercial product of this jig, this whole thing should not go beyond a war of words, if you learn to live with their letters.

Full disclosure : I own a dowelmax, and like it enough not to need any other doweling jig. But I am on your side as a matter of principle. If it comes to a point of you needing a lawyer, I'd be the first to contribute to a pool towards that expense; just PM me .

[eccentrictinkerer]

IMHO, it seems that OMS is just defending their patent. Because the makers of formica and aspirin didn't fearlessly defend the use of of their trademarks as generic terms, they lost the trademark.

Back in the day, Kleenex, Xerox and Polaroid had people trolling through publications in order to rout out the nasty miscreants who used their TM's generically.

The PM's sound like 'sound and fury signifying nothing' to me.

[cgallery]

Phil, Loring's logic is irrefutable : OMS is both legally bound and allowed to defend their patent. If it comes to court, most likely you will find yourself attacking the patent itself (ie, towards overturning it) instead of simply interpreting it.

And let me be very clear that I have absolutely no problem with patent enforcement. Companies with a legit problem should waste no time contacting an infringer and working it out.

But the laws that govern infringement are very specific. Here is the test of whether a patent is being infringed:

The test varies from country to country, but in general it requires that the infringer's product (or method, service, etc) falls within one or more of the claims of the granted patent. In the United States and others that use a "peripheral claiming", that means that the infringing technology embodies each and every of the elements listed in the claim. If the technology incorporates all of a claim's elements (and possibly more) it is said to "read on" the claim; if a single element from the claim is missing from the technology it does not read on the claim and thereby does not infringe the patent with respect to that claim.
http://www.answers.com/topic/patent-infringement-2

Now, here are the two Dowelmax claims:

1. A clamp-type doweling jig comprising in combination:
guide block means; alignment means attached to one lateral surface of said guide block means; and clamping means attached to an opposite lateral surface of said guide block means; said guide block means including a block in a parallelepiped form, with top, bottom, lateral, front and back surfaces, and in said block several evenly spaced bores are aligned and extend through, said bores being perpendicularly disposed with respect to said top and bottom surfaces, and the distance between one end of said block, which is delimited by said front surface, and the first of said several bores, is equal to the distance between another other end of said block, which is delimited by said back surface, and the last of several bores, and in each of said several bores a drill guide is firmly affixed, so that its lower end is flush with said bottom surface, and on both sides of said block, for attaching said alignment means and, respectively, said clamping means, two threaded means are permanently fastened, each threaded means having means for assembling, with minimum clearance, said aligning and clamping means, and a threaded portion to which a knob with a threaded hole is screwed, and said aligning means incorporates an attachment plate for fastening to one of said lateral surfaces of said block and an alignment jaw extending downwards from said attachment plate and inwards towards a center of said block, two through holes provided in said attachment plate are so chosen, that said attachment plate is moveable on said means for assembling, with minimal clearance, said aligning means, said aligning jaw incorporating a foot-protrusion which extends partially under said bottom surface, at right angle relative to said attachment plate, so that an upper face of said foot-protrusion mates with said bottom surface and runs the length of it, and a reference plane of said foot-protrusion is parallel to said lateral surfaces and perpendicular to said bottom surface, and said clamping means comprises a joining plate continued by a clamp plate, said joining and clamp plates being situated in parallel planes, and said joining plate mates with one of said lateral surfaces which is adjacent to it, while said clamp plate is retracted with respect to said joining plate and is provided with two threaded holes in which screws for clamping are inserted.

2. A clamp-type doweling jig, as defined in claim 1, wherein said alignment jaw is provided at its lowest part with an abutting face which is perpendicular to said attachment plate and parallel to said bottom surface of said block, two thread studs being firmly inserted into said alignment jaw, perpendicular to said abutting face, whereby, in another arrangement of said clamp-type doweling jig, said clamping means is adapted to be attached directly to said aligning means.

Claim #1 is obviously out because it describes most of the Dowelmax kit in such verbose detail is that the only thing that would infringe would likely be something that looks identical to a Dowelmax.

Claim #2 is out because it it states "a clamp type doweling jig" (neither of my designs encompass clamps, they require clamps from the user). It then states "as defined in claim 1" (which as we already know, makes the rest moot, claim #1 and my jigs are miles apart). Then it goes into describing two threaded studs firmly installed perpendicular to the abutting face... my jigs have nothing like it, everything on my jigs is intended to come out, including the t-bolts on the first and the machine screws on the second. Then they go on to mention that it is a clamp-type doweling jig again (again, neither of mine are).

My attorney told me that their claims are extremely confining because of the nature of the doweling jig beast. That is, it has all been done before, or is obvious.

He also told me claim #1 is the longest claim he thinks he has ever seen.

[Tom Slick]

do you sell these doweling jigs that you make? I don't understand how a homemade, personal use tool is a patent infringement.

[Alex Franke]

I think publicly posting PMs is probably more a matter of forum policy than law.

At least one CLAIM of their patent has to have ALL THE ELEMENTS infringed for one of my jigs to be infringing. And their patent only has two claims. It is pretty easy to see that we're not even close!

Just a thought: If they're a big company with loads of cash and bloodthirsty, fast-talking, thumb-twiddling, in-house legal with no outstanding complaints, and you're a small private company then they could get nasty and try to bury you with depositions and the like... It pays to know your opponent My guess is, though, that they're just trying to scare you off.

Yeah, that's a really long claim. Someone needs to teach them how to use that key with the little dot on it.

[LinuxRandal]

IANAL (I am not a lawyer) and you should check with yours!!!

Posting pm's via another board (Sawmillcreek), could put you in violation of their TOS, which does have some possible legal recourse.
If they were direct emails, those you see posted from things such as RIAA cases, Piratebay, Dollyman, etc. Dollyman is a good example; he posted everything until he was given a gag order by a judge.
I've said before, and I will say again, you should check out sites such as Groklaw and their patent section, look for things like patent review and overturning since you have evidence of prior art.
As for your legal costs, while they may get stuck in the LONG term, traditionally YOU and only YOU are responsible for defending yourself in a civil manner, and few if any attorney's are going to defend you for free until you get a judgment for legal costs. If you want him to stop contacting you, you pretty much must inform him that ALL future corespondence, needs to go to your attorney of record.

Edit: You might look here:
http://www.pubpat.org/findingpriorart.htm
and you might contact Rarebear (can't remember his Sawmillcreek spelling), as I believe he spent his own money and overturned a patent attempt by Lee Valley.

[LCHIEN]

My reading of the patent agrees with your analysis that claim one is a very specific description of every feature of their dowel jig and as such prevents a nearly exact copy from being marketed.

However, as patents go that would be a very poor claim since it is so specific as to hardly exclude any other implementations not using the exact same components.
There could be two reasons for this, one that their patent attorney (or whoever wrote the patent) was a poor practitioner, or, more likely as you said, the art of dowel jigs is very well known and therefore the patent had to be very narrow to be allowed. It is said that very broad claims are the best if you can get them and very narrow claims are not worth the paper written on. I suppose that such a detailed claim could prevent Asian knock-offs of the sort where we hear the observations "must have been made in the same Chinese factory".

His claim of a jig with features in combination (I read that to mean it must all be in one assembly) etc. with "a clamping means attached" (around the second or third line). once you have used an external clamp rather than an integral clamp then his patent no longer applies to anything you can make, regardless of the rest of the 375 words in the first claim.

And if you can prove prior art his patent will possibly be held invalid. The prior art however, will have to have every feature he cites in the claim. I think that will be tough to prove.

Still, he can make life really miserable for you (more so than now) if he were to sue. An injunction would not cost you monetarily as you are not making htese jigs for sale but the tme and nuisance, plus an legal costs to defend might give you pause.

OTOH, maybe its not likely he will sue because in the end its likely he will lose so it all may be a bluff. Don't count on court costs, though.

Depends how much you want to risk for a hobby. Since its a hobby, I'd say its not worth the grief, even if it pisses you off to be bullied by this guy.

Your other option is to tweak this guy, continue publishing articles, citing the FWW prior art, the patent in question and then in a sidebar explain how your jig differs from the patented one. Have a lawyer read it before hand to cover your ass.

unfortunately, magazines and web forums usually want to avoid at all costs any lawsuit and may reject your articles if there's any hint of a legal complaint.

changing the subject back to the weakness of the aforementioned patent, it would be easy enough to get around it.
For example the claim calls for drill bushings "Flush with the bottom of the block". So a unit with bushings that protruded .010" would not be technically in violation of the patent. If questioned you could claim the extra length prevented the holes from splintering on drill entry.
"two threaded means are permanently fastened, each threaded means having means for assemmbling with minimal clearance said aligning and clamping means and a threaded portion with a knob with a threaded hole is screwed" So a non threaded rod, (or even threaded ones not permanently attached) and a quick-grip type friction closer. There is some allowance for technical equivalents (for example a crank handle vs. a knob) but when the claims are so specific, that allowbility may be in jeopardy. How about a single threaded guide/clamp rod in the middle and two polsihed guild rods on the ends?

[jackellis]

I don't know much about patents but I know a smidge about intellectual property (IP for short). There was a landmark case about 25 or 30 years ago (Intel Vs. Hitachi, I think) in which Intel filed suit against Hitachi and lost because they did not make a reasonable effort to protect their trade secrets. In that particular case, protection included having Hitachi sign non-disclosure agreements and keeping confidential documents confidential. This lawsuit could be little more than attempt to protect Dowelmax's IP in case someone else attempts a more obvious infringement.

I didn't re-read all of the other posts carefully to see whether you covered this ground already but I'm assuming the Dowelmax attorney said you were infringing without explaining how. Perhaps another way to approach this is to write back, explain that you have no interest in infringing on someone's legitimate patent, and then ask them to help you cooperate by explaining in writing exactly which claims your internet posts infringe upon and how. You should not have to hire an attorney for this letter and now they have a burden of proof. Of course, if you've already asked them then ignore what I've said.

But if it'll make ya feel better, I'm not tempted to try dowels for some of my joinery.

[vaking]

I am also not a lawer (how original) but my thought is: Since OMS keeps sending you one PM after the other - they are not really interested in going to court. If they had the merit and the stomach for actual court case - you would have had a subpoena by now instead of PM. They also are not interested in opening a debate with you on merits of specific patent. Based on descriptions here - their patents are very narrow and debate about it would not be good for OMS. In other words - anything you write to them will be ignored and they will continue their intimidation tactics because it is not meant for you. It's purpose is to make operators of forums, magazines, etc not to publish your work. Since operators want to avoid any legal battles - they get scared easily even if you don't. Any attempts on your side to bluff OMS into going away by the threat of you going public is futile because the more you go public the harder it will be for you to get anything published. Somehow I doubt online forum readers buy a lot of dowell max jigs, so you going public will not effect significantly their sales numbers. Your articles not being published in woodworking magazines is more important to OMS - magazines have bigger audience. You are likely to be correct that you don't infringe on OMS patents but that is not important - magazine editors will not want to go into details. Also OMS probably pays for advertizing in magazines. So I think the only way for you to make OMS really go away is for you to start legal action. What are your chances of succeeding, is a hobby worth the efforts, etc - those are the things you will have to decide yourself. If you don't start the legal action - OMS will keep trying to intimidate people around you into staying away from your creations. And don't expect any meaningfull debate whether you actually infringe or not outside of court. OMS will make every effort to avoid it.
That's my 2 pennies.

[cgallery]

Okay, thanks everyone for your additional analysis. It is helpful.

I have some concern whether communicating with me protects their rights at all. As I've read it myself, and had attorneys read it, and as Loring (with quite a bit of practical experience in this regard) indicates, I am not very close to infringing. Are they protecting their rights by ratting their sabres at me? I can't see how they would be. Perhaps they are just practicing on me?

I should also remind that, it isn't just a matter of writing me. They have written to web sites where I posted my jigs and objected to my posts based upon their ridiculous patent infringement arguments.

Even more concerning is that, when woodnet.net originally responded to my inquiry of why my original jig's post had been removed, they finished their admonition with "BTW, we are aware of some of your history of inappropriate postings on other woodworking websites."

Of course, this upset me even further. Not thinking of myself as a troublemaker, I asked them for clarification. They provided a link to a thread at SMC that I had never even read (much less posted in).

When I brought this to their attention, they responded with "My apology, you are correct, there was a mistake made there. We do not regard you as a troublemaker or a dishonest person."

Now that seems like a bunch of bunk! What the heck happened there?

So I don't like hearing from O.M.S./Dowelmax, and I don't like the operators of woodworking forums hearing about me from them. It sucks but it looks like I'm kinda stuck.

I have spoken to my attorney about the costs to get a "declaration of non-infringement" (which I am entitled to seek now that they have threatened a lawsuit--which is another long story I won't go into). It isn't a matter of not being able to afford the legal costs. But, because I have no plans to manufacturer or sell jigs, it would largely be a waste of money.

Maybe I should get the declaration, and crank out 1,000's of the things and sell them through Woodcraft and Rockler. I live in one of the tooling centers of the world, after all.

Finally, on my motivation to continue posting about my doweling jigs, I should also state that I like doweling jigs. I like dowels. I use them fairly often. I also like woodworking sites, and post fairly often, too. I don't think I'm ready to consign myself that I am no longer to post about my doweling jigs because of these preposterous legal threats.

I'll figure something out...

[LCHIEN]

I don't approve of it, but all this mess could be the result of
1. trying to set precadent for upholding their IP rights. If they show efforts to enforce it then the Gov't will believe they are not abandoning it.
2. Overzealous lawyer. A small co. will not have a full time patent lawyer unless they are really litigous. These IP lawyers are usually separate from the corporate lawyers.
In some cases I guess they are paid a retainer and guaranteed some minimum business and an (large) hourly rate on top of that. Could be that lawyer is piling up billable hours by going after anyone who utters dowel jig in his sleep. Internet searches are gold mines for him in that regard. It takes littel effort to send out threatening letters (he probably has a file folder full of canned ones). And only about 47 cents more to send it to everyone associated with you. And it looks to his employer that he's doing a real good job when they get reams of copies of correspondence.
3. Scattergun techniques - in the hopes of scaring off potential competitors they fire scattergun letters at anyone who mutters dowel jig and anyone associated with them. As a business tactic.

All perfectly legal.

[Alex Franke]

Keep in mind also the so-called "equivalency doctrine," which protects original patent holders when the new invention does essentially the same thing or has the same result as the original, even if it is a bit different than the original claims. (We were not able to secure a patent in the past because of this.) Something to look into...

(Also not an attorney, btw.)

I have spoken to my attorney about the costs to get a "declaration of non-infringement" (which I am entitled to seek now that they have threatened a lawsuit--which is another long story I won't go into). It isn't a matter of not being able to afford the legal costs. But, because I have no plans to manufacturer or sell jigs, it would largely be a waste of money.

Maybe I should get the declaration, and crank out 1,000's of the things and sell them through Woodcraft and Rockler. I live in one of the tooling centers of the world, after all.

You might also consider patenting your own invention as an improvement over the patent they hold, though I don't think this would necessarily protect you from infringement (patents tell people what they can't do as opposed to what you can do).

[cgallery]

Keep in mind also the so-called "equivalency doctrine," which protects original patent holders when the new invention does essentially the same thing or has the same result as the original, even if it is a bit different than the original claims.

The rule of law for determining equivalency as laid down by the Supreme Court is quite simple: "If two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape." Despite the seeming simplicity of this rule, its application to a particular case is often complex. Determination of equivalency frequently involves conflicting opinions of experts and disputes as to scientific or engineering facts. The issue is often resolved by the testimony of expert witnesses and the decision may rest on which of the experts is the more believable.

Interesting point. First, I don't think it applies because their claims are so different from what I've built. We're not even close.

BUT, even if the doctrine did apply, they don't get to apply it in a vacuum. The same Doctrine of Equiv. would apply to their jig, as well. And there are 20-30 previous patents for doweling jigs, many of them sharing more similarities to the Dowelmax than to either of my jigs.

I should also mention that, the article in FWW that I believe was printed before the Dowelmax patent was filed, and would have certainly sat on an editor's desk for a while, and would have taken a while for the author to write, and said author perhaps having used that method for quite a while before even writing the article, is a pretty good defense for patent infringement.