Replies to “Politics” post.

Following are the replies to my patent query.A Thanks to all tha

Following are the replies to my patent query.  Thanks to all that took time.  It appears they may well have the right to their patent, but may have a significant challenge open from one Marmaduke Loke, mastermind of the DBS AFO.  This may be fun to watch. I am ordering the material next week.  It comes in several set-ups.  I am going to have a lot of fun playing with it.  Please everybody wait for me to order mine before placing your orders.  I will be quite upset if they sell out and I have to wait.  Tuesday sounds good, okay? lol  We should all make videos of our own designs and outcomes.  These babies may fly!

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Hi Kevin
Those struts look just like the ones sold by Medi for prosthetic pylons. Instead of a tube Medi makes those two rods that are connected on each end with a receiver for the pyramid. My Medi rep just showed them to me last week. Very good use of material.
Good luck with fabrication.

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Just a
FYI, I have been using struts of several designs for 20 plus years.  (Of polymer and of laminates & Carbon fiber.) They are not new. It’s how you use them that matter and provides success.

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In response to your patent question, according to a patent attorney, yes the government can and does patent designs and is treated like any other company.  In fact, anything developed by a government employee on gov. time and money automatically belongs to them (as opposed to the employee)  This is true at universities, military establishments etc.  However, usually the government is eager to license such intellectual property for others to use (I am assuming for a price).  So it is unlikely that it would ‘hoard’ the technology, but rather wants to be in charge of and profit from its release into the public sector.

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This is a lot of assuming, but here is my understanding of patenting a product/item in this case:

1.  If Mr. Loke was producing this item prior to working with the military or whoever he shared the idea with and he can produce proof of any sort (drawings with dates, receipts with date, proof of delivery etc.), THAT is what they refer to as “Prior Art” and it would only be Mr. Loke who could patent the idea.

2.  In order for anyone else to patent this product Mr. Loke would have had to sign the rights of the invention over to whoever is trying to patent it.  There would be a clear cut agreement where he had done so.  Even if he had signed his rights over to another person/company he would still be listed as the primary inventor on the patent application

3.  IF, he has not assigned the rights over to someone else then a patent could still be obtained, but it would be very difficult given the fact that there is Prior Art on the item.

4.  There are two types of patents in this case “Design” and “Utility.”  A “Design” patent only deals with the ornamental “uniqueness” of item.  This would be the Nike Vs. Addidas shoe in terms of design.  A Design patent has nothing to do with the utility or function of an item.  Someone can get a Design patent on an item and all you would need to do is change the appearance of that item and someone else could get another Design patent.  They don’t hold much value, especially in this case.  That is where the “Utility” patent comes in, which deals with the unique function of a device and basically “what does this item do that no other item available can accomplish.”  In order for ANYONE to get a patent on this Orthosis, they would need to be able to prove to the patent examiner (most of which are usually lawyers) how this particular design differs from others out there base on the function it provides and how it provides that function.  This is
not easily accomplished and it can take several years for a patent application to be accepted and the patent protection issued.

I did a quick patent application search on the U.S. Patent and Trademark website (http://www.uspto.gov/patents/process/search/index.jsp#heading-2)  and did not see anything where someone has tried to apply for a patent on this item, but I didn’t do a REAL thorough search.

I wouldn’t worry too much about the government or whoever the inventor would be suing you in this case.  If they haven’t applied for the patent yet, it could be 2-5 years before they get protection on the item at this point.  Besides, a patent does not give the inventor the right to sue you for infringement, it only guarantees the inventor the right to manufacture and sell the item uncontested.  In an infringement case they would have to prove how you fitting their design has caused them significant loss of revenue due to your impact on the market for the item.  Most infringement cases end in an agreement for one party to pay the other a royalty.  This does not sound like this is the case with your situation.

I hope this is helpful, if anything the USPTO website is fun to explore to see what concepts are out there in our field and what new items might be coming up
 
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Kevin
This is very similar to a design from the 90’s called the Littig Afo. It was distributed by USMC. He used a strut from a protheses attached to plastic or laminated foot section. Problem was the attachment fatigued quickly.

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What a world we live in….somebody scalps another’s ideas, technique, process and then submits it for a patent. WTF?

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How about HALO struts? Carbon and no attachments.  —-Me:  (This may work, but I feel may be designed with no flex properties.  Worth looking into.)

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It states that the “prosthetist” designed the orthosis. Maybe refer the case to TBOP as a prosthetist cannot eval or fit an orthosis…not legally anyway
 
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Kevin,
 
Establishing the prior art of some of our clinical practices is one of reasons for the O&P library.  I suspect I could set you up with your own orthotics section to run as it woefully under represented in the library . . .
 
Topic at hand, I’m working with government researchers in Seattle on technology I developed.  This topic has come up and I’ll give a brief and dubious synopsis:  the government wants unfettered access to inventions that they fund, but the rights remain with the inventor.  Who invented what, can be a sticky question amongst a collaborative group.  I signed one the dotted line because I trusted the researches I’m working for, have an expensive IP lawyer and basically needed the funds.  Here is a link that may or may not be helpful:
 
http://apps.americanbar.org/contract/federal/randcomm/Bayh-DoleActpro.pdf
 
The government has lawyers in house to handle intellectual property and you, as an individual, will have to pay a lawyer $400 per hour (and that’s lawyer’s hours) for advice. 
 
I’d also add that anyone giving advice on patents that isn’t a lawyer charging you that $400 (some go to $495) per hour, doesn’t know what they are talking about, especially me. 
I don’t reckon that anyone would sue an individual shop (but I remember when NovaCare threatened former employees – CATCAM socket—from offering such in their new practice).  It takes years to get a patent, and it may never actually get patented and what gets patented might not apply to what you want to do.  So you could work on your designs for years and year before any theoretical issues arose.     
 
 
I’d also get Marmaduke Loke (did he once have a shop in San Diego ?) to establish a date of priority for his work.  He could post things on line.  You could interview him and post developmental pictures on some willing web resource or an article in one of the trade mags.  You could also play the spoiler and give out the source of the struts and make the design effectively worthless once it is patented.
 
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Kevin:

I cannot offer any insight on the U.S. Government’s right to patent an idea that was funded with taxpayer dollars.  Consult a patent attorney for that.  I can comment on a basic premise in patent law:  In order for an invention to be patentable, a patent application must be filed within 12 months of the first public disclosure of the invention or within 12 months of the first commercial sale of an item incorporating the invention.  It sounds like your description of the chronology that the basic design of the novel DBS AFO had been delivered to many soldiers, implying a commercial activity (sales or reimbursements to the provider).  It also sounds like the offshoot design by the military, the IDEO, has also been delivered to many soldiers, also implying commercial activity.  The key issues re: patentability wil be timing and whether the IDEO relies on the “prior art” embodied in the DBS AFO. 

Again, consult a patent attorney before pursuing manufacture and sale of the device you are contemplating to research any existing patents that you may be violating.

Good Luck!
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Are those rods or “rectangular bars”? If they are cylindrical shape and can be molded then you could place them anterior to the ankle which could give you more df control and push off.

Me:  Makes sense, but the bulk…I think better posterior.
 
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There is a military patent and it is classified.  Teflon applied for a patent a long time before you saw it on a frying pan.  It got bumped to a military patent for about 25 years.  They put a teflon nose cone on ICBM’s.  So, maybe the military can patent an idea or maybe it never leaves the military section.  Information will probably be sparse on the other side.  Just like Apple Military is supposed to be much bigger than the main Apple computer company.  Maybe the military has their own stock for companies like Apple Military also…

Hi Kevin,
I forgot to mention, you can copyright the design you have by sending a picture, a plan or an actual product.  Send it by registered mail to yourself and do not open it, as it is future proof of what you did.  Copyright is almost as good as a patent.  The military does not have the resources or channel to sue you.  Leave your idea open or closed to speculation on what it does or does not do.

I worked on the original Seattle Foot and we kept a closed patent which was a mistake and a blessing.  We demanded the device be able to be changed like other feet with a single bolt.  We ought to have at least come up with a double bolt design for force coupling.  Double bolt design lost to Burgess, so did less than modular design, and that lead the opening for Flex Foot.  This was a blessing because it brought immediate competition in a healthy way, and that turned the amputee industry upside down, and if you will look back historically, 1985 was when everything began to change for the handicapped world.
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I understand the struts may come from Medi.  Try contacting Chris Jacob the
Texas Rep through Medi USA @ 800-633-6334

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I’ve never had much interest, or admittedly, talent in Orthotics but even I can see that this design in the newspaper is highly derivative (for that matter, all O&P designs are highly derivative).  However, I look at that brim of that AFO and the first question that comes to mind is why is it cut above the tibial flare?  In the old PTB socket design, the tibial flare is a viable vertical loading surface.  If you want to off load the distal end of the stump, increase the loading on the tibial flare.  [Nowadays, it’s just add a thicker liner and all problems are magically solved.]  You could dip down, catch the tibial flare and flare back out, pad it, for adjustment and you’d get some proximal suspension on a load tolerant area as well as some additional ML control (I think).  Feel free to correct a prosthetist thinking, and this no doubt an example of why we should stay away from even thinking about orthotics.
 
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Well this was a fun endeavor.  Kodos to those who read them all.  Makes ya think, don’t it.  Kevin
 
Kevin C. Matthews, CO/LO
Advanced Orthopedic Designs
12315 Judson Rd. #206
San Antonio, Texas 78233
210-657-8100
210-657-8105 fax