[Question] Is it possible that a "patent" might be fake?

[Mark Atkinson]

This one is for the law gurus.

Some of you may have seen the shirts we make: www.bafokkeshirts.com

If you haven't, please just take a quick look to get the background knowledge for the questions I'm about to ask.

Basically what's happened is a couple guys contacted us and we met with them regarding our shirts. Apparently these guys have a "patent" for shirts that are split down the center in the same manner as our shirts are split. In fact, they go so far as to say that the patent covers anything that is split down the center (from mugs to caps to posters, etc.).

They made very sure to point out from the second we sat down that they had this patent, and even produced some documents on their lawyers' letterhead, which they claimed was the patent. I looked over it and it was basically a bit of blurb about the registration of the patent on the first page. The second page was an image of a shirt that was a split of 2 sporting teams, with a couple numbers pointing to it (they couldn't explain to me what these numbers meant).
From what I could see, there was no description of the product or anything to indicate what it was, besides the picture on their lawyers letterhead.

My questions are the following:

1) What does a registered patent look like? What descriptions does it entail etc?

2) Can something like that even be patented?

From what I understand, reading from CIPRO's website, a patent is: "an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem."

I really don't see how it can be classified as an invention. In my mind it is a design, in which case you can't possibly register everything that is split down the center. This is why we applied for the Trademark on "Bafokke" and not on any design.

Just some extra information: These guys were not saying they want us to stop making the shirts. They make their own sporting shirts in similar fashion (nothing to do with Bafokke Shirts, though). They did, however, state that they wanted to "work with us."

They were very interested in who our supplier was and were hinting at perhaps getting some of their products on our website. The feeling I get is that they have seen our product and are simply trying to jump on the bandwagon and get a slice of the pie.

Thoughts? My mind is buzzing with thoughts on this matter and I'd like to see what you guys think.

I really don't want to consult a patent attorney if I don't have to.

[Martinco]

The limited knowledge I have about patents is that there are two possibilities:
1) If you invent some widget that has never been in existence, AND you have told nobody else about it,( this is important ) you may register this as a new invention or if you find something that can improve on an existing product, you may patent your "improvement" ( Valid for 21 years )
2) You may register a "Model" i.e. if you take a coffee mug and you paint it in a specific design, you may register this design. ( The picture ) in much the same as a trade name/mark is registered.
To register a open front shirt sound like BS to me. I mean open front shirts have been in existence for ages.

[Martinco]

Ok, I should have looked at the site first. I now understand that is not an open front shirt but only the design that is split.
No........that is not a patent but a design and they may only register THEIR design. i.e. their picture.
But please take note......in SA you can register ANYTHING even if it exists somewhere and is registered. You can even register a tu*d. It is up to the "offended" party to litigate the validity in court and prove what sort of losses they incurred but that is a VERY costly affair.
The comment I got from the registrar of the Patents office was that they are there to register patents ( and collect your money ) and not to adjudicate on the validity of patents and designs.

[Dave A]

Did they give you their patent number?

[Martinco]

I went through the same sort of situation.

A person approached me with a request to design an manufacture a method of attaching vineyard support wires to the upright pole but must be so that the wire can be removed again in pruning season. So I sat down and worked on a design, made a few samples on my wire cutter, tried it and thinking it could do the job, I then patented the item.
I sent the samples to the guy and he then tried it and it worked for him and without my knowledge went and patented the item EXACTLY as per my sample. ( As I said..the Registrar will patent anything without ANY search what-so-ever.)
The guy then asked me to manufacture the items for him. I must have made about 200,000 when he approached me and asked me to drop the price because he is the patent holder and if he stops his order on me, I cannot continue manufacturing and supply to other customers. ( The tool cost me +_ R45000 )
He provided his patent # and I made an inquiry at the Registrar .......and yes, he did patent but about 20 days after my application. I pointed out to him that I also put in the application 20 days before him and that his application is not valid.

I approached the Registrar and was told that it is not their job to check for duplicate applications. They only register and if I want to contest his registration application I have to do it via a patent attorney but that cost a LOT of money so I left it.

Well..to make a long story short, I told this guy to go and get st*ffed and continued my manufacturing.

[Martinco]

Sorry I got so carried away that I did not concentrate on your question.
Can it be a fake ? Not necessarily.
But the number as per Dave's post is important to determine if it is a "patent" registration or if it is a "Model/design" registration but I am fairly sure you have nothing to worry about as the shirt is not "patentable" and if your design is not exactly the same as their's then just laugh it off. It is most probably the registration # for their design. But get the number.................

[desA]

Seek advice from your IP attorney.

[Mark Atkinson]

Thanks for the input guys.

I have emailed them asking them for their patent number. (I did not look specifically for it when they showed me the papers.)

The thing is, the papers they showed me specifically said "Patent" and this is where my suspicions creep in. A patent is for an invention, not a design. A design that is half & half of 2 shirts is surely not something that falls under that classification.

If I can get hold of their number I'll do a patent search and see just how much water their claims hold.

I really want to tell these guys to go jump off a cliff but I need to make sure that they have no grounds with which they can screw me over.

[desA]

The cost of consulting your patent attorney will be a few rands, if anything - especially for first consultation. By getting into a bun-fight without even knowing the true scope of the matter - you may be placing yourself in the underdog situation.

I am most surprised that their 'patent attorney' did not simply write you a letter informing you of the issue.

[Martinco]

The cost of consulting your patent attorney will be a few rands, if anything - especially for first consultation.

I am most surprised that their 'patent attorney' did not simply write you a letter informing you of the issue.

desA, you will be surprised what these guys charge for a consultation especially if there is a search involved.

If this is a provisional application that they have then it does not mean that they have a "patent attorney". A provisional can be done by any person as with a final but with a final it is definitely not advisable to tackle on your own. Too many aspects to look at for a layman.
But the number will give answers to many speculations.

[Dave A]

The thing is, the papers they showed me specifically said "Patent" and this is where my suspicions creep in.

Suspicions? It positively reeks of BS.

There is a distinct difference between a patent and a copyright.

[adrianh]

They cannot patent an idea, just a specific design. Anyway, tell them that they are welcome to take you to court to prove their point. They themselves, nor their lawyers (if they have any) can enforce the so called patent. They can jump up and down, make a lot of noise and nothing more. If they want to force you to abide by their patent then they need a judge to make a ruling forcing you to to do so. The Kreepy Krauly vs Barracuda thing went on for years.


To quote Justin Nurse "Laugh it off"

[AndyD]

Sounds like these guys are taking a chance to me.
As martinco pointed out there are millions of 'patents' registered that won't hold water in court. Splitting a design into two halves has no novelty so wouldn't be a patentable thing. Find out the patent number they supposedly have and search it yourself. You don't need a patent lawyer to do this, the lawyers don't search anywhere that you don't have access to. If they're full of crap then go open a docket for fraud against them. Even if they do have some kind of patent tell them to go fly a kite, you'll see them in court. Owning a patent is one thing, having the means to enforce it is another, the lengthy and expensive legal process involved means that when it comes to enforcement 98% of patent holders will be all mouth and no trousers.

[Mark Atkinson]

So guess what? I leaked our supplier's contact email to these guys, followed by an email asking them for their "patent" number.

I've heard nothing since. Big surprise. Guess letting them on to my supplier wasn't the smartest move.

[AndyD]

What possessed you to give them your suppliers details?