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Patents on designs??

Discussion in 'Luthier's Corner' started by Willy Franklin, Feb 18, 2005.

  1. Hey all,

    I was wondering if you need to (or have to, or should, or can) patent the designs of your instruments?

    I didn't know if any of you luthiers could shed a little light on this for me...


  2. tjclem

    tjclem Supporting Member Commercial User

    Jun 6, 2004
    Central Florida
    Owner and builder Clementbass
    good question. Been thinking about that myself..........t
  3. mheintz


    Nov 18, 2004
    From both a legal and artistic standpoint, it's important to think about what you want to patent and why. Alternative protections such as copyright may be available.

    Is your design patentable? Is it utilitarian or otherwise, not suitable for copyright? Do you merely want to prevent others from building it? If so, could you defend the patent? Is the expense of filing a patent worthwhile for you? Do you want the patent as a marketing device or resume builder?

    These are just some of the questions that you would need to answer before deciding on what sort of intellectual property protection, if any, is suitable for you. You should also discuss with a lawyer whether filing a patent is the appropriate option.
  4. I believe that I saw a patent mentioned on a thread here about Mr. Fender patenting the Musicman 3+1 peghead style. I guess I'm wondering if by working in influences from other instruments into my own design, am I doing anything wrong...

    If I try my best to make a copy of a Fender (or a Smith, or a MTD), am I breaking the law??


  5. mheintz


    Nov 18, 2004
    Willy, your questions are very interesting actually. Legally quite gnarly. Due to certain ethical rules, it would be unwise to accept any lawyer's advice as to whether you are infringing without specific facts, and in general, online forums are not the best place to offer such advice particularly because of jurisdictional and conflict rules. Suffice it to say that it is possible to infringe a copyright, a utility patent or a design patent by copying an instrument.

    One of the interesting differences between copyright and patent is that a person creating a copyrightable work does not violate another person's copyright if they are not "copying" but rather independently creating a similar work. For instance, if two hypothetical luthiers go into two separate caves and create two exactly similar basses, but without copying the other luthier's bass, each luthier would have a copyright on their respective bass, but would not be infringing the other luthier's copyright. Not so with patent. If Luthier A and Luthier B were both to go into separate caves and both were to create similar patentable bridges without copying the other Luthier's work, and Luthier B were to file for and obtain a patent, Luthier A could still infringe upon Luthier B's patent even though he did not copy Luthier B's design.

    Why is this important? Well, it is difficult to patent new bass designs and often luthiers do not patent their designs. So, although each particular case is dependent on the facts, such designs are often protected by copyright and not patent. So if an aspiring luthier were to go into their garage and create a new bass design that is influenced by other bass designs but does not "copy" the design, then it is less likely that you will be infringing another luthier's intellectual property rights. Of course, each case is dependent on the facts, and if you are concerned about violating another luthier's rights, you should consult a lawyer. The moral of the story is that you are less likely to violate another luthiers rights if you use your imagination and create designs, even if influenced by other luthier's works. This will not only be more interesting for you, but it is also less likely to infringe another's IP rights.
  6. Beautiful... That's kind of what I figured... Thanks for the reply... Now, OFF TO THE GARAGE!!! :)
  7. No, No, you didn't read mheintz's post carefully. You've got to do all of this in a CAVE! ;)
  8. M_A_T_T


    Mar 4, 2004
  9. mheintz


    Nov 18, 2004
    M_A_T_T, I read the thread that you posted. Unfortunately, the legal analysis is generally incorrect. One piece of good advice from the thread is that if you want to protect your works or if you are worried about infringing IP rights, then get a lawyer. There are non-profit groups that could assist small luthiers for free. Call your city bar association and they can refer you to groups like Volunteer Lawyers for the Arts. Otherwise, creating your own original designs is the best way to keep clean.
  10. Clark Dark

    Clark Dark

    Mar 3, 2005
    With so many designs already out there and newer ones coming everyday you would need to hire a patent attorney to do the years of research to make sure that YOU are not stepping on someone elses toes. Costs around $10,000.00 :D
  11. r379


    Jul 28, 2004
    Dallas, Texas
    I looked into patenting an idea once and I learned, among other things, that the process can be prohibitively expensive. As mentioned in an earlier post, a search needs to be done to see if a patent for your idea already exists. I don't know that I'd hire the patent lawyer I was going to use to do the patent search; I'd be tempted to hire an independent investigator.

    The first patent application you (or you attorney) files may very well be turned down as being to broad (and therefore infringing on an existing patent) so the application will need to be revised and could require additional revisions. All these revisions cost money and there is still no guarantee you will be issued a patent.

    Years ago meeting the requirements for a new patent was much easier because there were fewer existing patents upon which to infringe. With the larger number of existing patents that is no longer the case.
  12. mheintz


    Nov 18, 2004
    There is a lot of concern about patents. People seem to have the impression that if you don't get a patent you can't protect your designs. This isn't true. Copyright, trademark, trade dress and trade secret are all perfectly suitable ways to protect various aspects of a luthier's work. And they are often cheap too! I still recommend getting a lawyer, particularly if you are serious about making a living at this, but you need not get a patent lawyer. Many attorneys can advise you on copyright, trademark, trade dress and trade secrets. Unlike patent lawyers, there is not a separate bar to practice in these areas. If those lawyers feel that you need a patent lawyer, they can often refer you to one. (Again, contacting pro bono groups like Volunteer Lawyers for the Arts is a viable option.)

    I also recommend that you go to www.uspto.gov and www.copyright.gov. In particular, note the simplicity of copyright registration. Designers, particularly of functional sculpture, tend to forget about copyright, but it is quite powerful.

    As for searching for copyrights, trademarks and patents, you can do so on those sites. Of course, you should hire a lawyer before filing for trademark or patent protection, but perhaps the most important reason for the registration system is for designers and inventors, such as yourselves, to see what is already out there. Searching for patents, copyrights and trademarks is only slightly more difficult than talkbass's advanced search.

    Now, all of this being said, I still recommend that you think about why you want this protection. Even if the IP protection is cheap, responding to infringement may be expensive.
  13. r379


    Jul 28, 2004
    Dallas, Texas
    Doing yor own patent search could save you money unless, of course, you don't find what you need to find. That could be more expensive. A thorough patent search is an absolute must.