Rip-off by MSR ?

Roger
If you were making tents for a living and had been the first to apply for a patent on that two pole freestanding design ( that BTW is also very obvious and easy to copy AFTER you see one…) how would you feel if MR BIG GUY came along and marketed the same thing with some make-up applied ? ( not that I could make that red tent much louder…)
Franco
Fiberglass poles ? Luxury. Just a few years later, in my teens, I had to take my chances and sleep in the open on the Italian Alps 'cause we had no tents. We burnt grass and cow dung to keep the flies away ( doesn't really work, the wind always blows towards you, but gives you something to do and puts you off smoking)

Hi Franco

> Fiberglass poles ? Luxury.
Yeah, and not cheap fibre glass either. I managed to get some Jarvis Walker fishing rod blanks from the factory. That's very high qual stuff.

Rip-offs? Sigh. Human nature.

Cheers

I assume many out there know this – but I figure there should be some clarifications:
Patents are, when you think about it, funny things. They came to be since knowledge, unlike other goods, can be replicated without loss or degredation and thus an inventor cannnot protect his invention once exposed – so, to promote innovation, the government gives the inventor the right TO EXCLUDE others from using his invention. In return the inventor has to disclose the nature and process of the invention so he makes mankind smarter and moves technology ahead.
To be patentable is a non tirvial issue and basically has three pre requisits: invention must be non-trivial to a PERSON WELL TRAINED IN THE AREA OF THE INVENTION, invention must be useful (i.e. have some function – art is not patentable) and invention must be FULLY DISCLOSED in the pat application.
Just to take Henry vs MSR and look at it a bit:
1. Does henry have GRANTED PATENTS? having a pat pending means nothing at all.
2. How non trivial is the design TO SOMEONE WELL VERSED IN THE TENT DESIGN ART? How will it hold to real scrutiny in court?
3. What is the prior art? what has been done and published (even if not physically designed) before all over the world! – DO ANY OF YOU REALLY KNOW?!!
4. Where did Henry file for PAT? KNowing the prices i assume he only filed a US pat, or even if he filed with the PCT – where did he enter national phase (that means – in what countries did he decide to pursue local patents).

Assuming he has GRANTED patents (big IF IMO knowing the timeframes of USPTO claims) he has the right to sue for infringement only in countries where he has the patenents. If, for example he doesnt have a patent in Japan he cannot sue there.
If he has a granted US patent – he can however, sue a company operationg outside the US in a US court and theoretically have the court suspend all their OTHER busines IN TH US or the business of their importer into the US….
Of course he will have to prove IN COURT two things: first that there has been a patent infringment (which is completely non trivial since a good Pat lawyer can always seem to find some document published in a chinese magazine in 1976 that talkes about something close to what you are doing and thus your patent is void since there is "prior art"…..
He will also have to PROVE that there were reasonably conceivable monetary damages. e.g. – if MSR sells them in Japan only and henry doesnt really sell in japan there there are no monetary damages….
of course taking on a tier A intellectual property lawyer in the US to prosecute would probabaly mean expenses in excess of 100,000~250000$ which i assume henry would be hesitant to take out of pocket (although sometimes you can get a good lawyer to work on comission if he really believes you will win)

I am just as infureated as anyone by the big boys copying from the innovative small guys and exploiting the slowness and expensivness of the US judicial and patent system…

Having siad that i think lashing out at anybody without REAL knowledge of the full extent of the problem and having all the data is iiresponsble and childish

Mike

Franco wrote:

"The Scarp well illustrates the point ( I think)
Inasmuch as most will compare it to the Akto, owners of the Exped Vela (1-2-Mesh) or the Laser (Laser-Laser Competition-Laser Photon) as well as the lesser known Vango/Robens/Fjallraven and Robert Saunders versions of the single cross hoop design , must be getting a bit miffed having their shelter ignored."

The Akto was the first design like this as far as I know. appearing many years before any of the others in the early 1990s. Robert Saunders Spacepacker is the closest and did appear before the Akto but it lacks any supports at either end and the shape is different.

With regard to the Rainbow design it is the same as the Phreerunner/Phreeranger, two tents made by British company Phoenix in the 1980s that I used often. However using trekking poles to make the design free standing is new and does make the Rainbow unique. No one had thought of that before.

Franco again:

"The difference is in the detail. When you look carefully at the various models mentioned above you will see that all they really have in common is that center pole. The vents are different ( in fact for a while the Akto adopting the concept of a Swedish sauna, did not have one)"

I have one of the original Aktos and one of the newer ones with a high vent. I don't actually find the vent makes much difference. The two end vents are more important.

Certainly the detail (and weights) of the different versions of this design are significant and it's good to have such a choice. Designs should not remain static.

I know what you mean about the patent system being slow as my brother works on the electrical engineering side which does get a lot of funding and support but still is woefully about a year and a half to two years behind. And that is for a division where the product can leap ahead weekly.

>>Just kidding… but Under Armour has a baselayer fleece that is EXACTLY like the Patagonia R1 (non-hoody) pullover. Down the to checkered pattern, thumb holes, stretch…

I believe the R1 fabric was developed for Patagonia by Malden. Patagonia had exclusive rights to the fabric for a limited amount of time. Now the fabric is available to any manufacturer.

http://www.luxeoutdoor.com/eng/catalog-topic-gallery-view1.asp?id=588&selfpath=/12/114

licensed or just a copy ?

Check out THIS 1948 freestanding tent design! Looks a lot like my beloved Big Agnes Seedhouse 2 SL tent.

Fred
The Luxe Habitat I "suspect" was inspired by the Hubba Hubba , however the hub connection is not unique to MSR ( Ben thinks that Big Agnes started that, he would…) that freestanding design is not unique to MSR and the two tents are (if you see them side by side, I have) sufficiently different.
Disclaimer. I know the designer at Luxe, so this was a very biased comment..

Ben
Thank you for that link . If nothing else now Roger knows that freestanding came about before he was born…
I might check up some of Leonardo's drawings.
Franco

Several thoughts come to mind:

1) Cascade Designs owns MSR? I didn't know that. That's too bad (not that I have anything against Cascade Designs, it's just that a bigger company may be harder to talk to).

2) Is this a rip-off? Maybe. If the designers saw or heard of Henry's tent, then I would consider it a rip-off. The two tents are very similar and the Rainbow is quite different than anything developed before (not only does it use a single pole over the top, but the Rainbow may be the only tent out there that uses trekking poles to create a free-standing tent). It is possible though, that the MSR designers didn't know about the design or (more likely) thought that Henry wouldn't mind. If it the latter, at the very least they should have tried to contact him.

3) The MSR tent is double walled. This may have led the MSR folks to believe that Henry wouldn't mind. I don't know, but I'm giving them the benefit of the doubt.

4) What to do? If I was Henry Shires, I would try and contact Cascade Designs. Based on their response, I could see several options. If Cascade Designs apologizes and settles things with Mr. Shires, then we all can move on. If, however, they are unresponsive or unrepentant, I see a couple options. One, is legal. It shouldn't cost anything to walk into a lawyer's office and talk to them about suing them. The lawyer (or law firm) may get a third of the cut. So be it. The lawyer may also tell you don't have a case. Just make sure that the initial conversation is free (it should be, but you want to make sure).

The other option is to mount a publicity campaign. Cascade Designs and MSR has a lot to lose if they are known as a company that rips off engineers. An article in Backpacker Magazine would cost them plenty. A letter campaign to REI could hurt them immensely. Remember, REI is a co-op, so if enough members petition, they might drop MSR brand tents. The threat of these actions might be enough to convince MSR (or the parent Cascade Designs) to do the right thing. Again, I have no idea how the MSR designers feel about any of this (how they came up with the design, etc.) nor do I know if the parent company, Cascade Designs, even knows about the problem (if so, their might be some V.P. somewhere asking some tough questions to some other employee soon). Companies spend a lot of time and money building a brand — they don't want it ruined.

Ross,
The way I see this issue is that Henry, TT, has a forth option I like best. Continue to make high quality, light shelters, made in America and offered at a fair price. The UL community understands and knows the issue and will support Henry.

Ross,
Although what you suggest is mostly logical – I am still at awe as to how fast people have decided that this is a rip off and mostly that Henry Sheirs would like you to act on his behalf.
Apart from the initial and (very) laconic post that henry put up he basically hasnt stated his position. I persoannly would not feel confortable to act without his "blessing" since his personal/professional interests might not be aligned with what you are suggesting.

Beyond that i feel (and I am not an intellectual property lawyer but have worked with, benn sued and wrote patents myself – so i know a few things about them) that the question is not whethere these two tents are similar – that is obvious! it is not even interesting if the MSR designers were "inspiered' by the tarptent or actually thought of it on their own – the only real issue from intellectual property perspective is "does this claim have any grounding in the legal reality framwork"
Namely: has henry filed a patent on this? has MSR filed one as well (this happens many times)? who was the first to file (in USPTO the "first to file"is granted precedent unlike EU where the first to invent) Is there prior art? and is this case strong enough to warrant going to court with.

Regarding your suggestion of trying to have trail magazine write about it – try to remember that they to have legal advisors who i am sure will advise then not to mess around with unsupported patent infringement claims against a big industry name tha might turn back on them as a liable suit.

I suggest we allow henry to followup on this as he finds best and if he decides to engage the community he will raise that himself

Mike

From Ross, "Remember, REI is a co-op, so if enough members petition, they might drop MSR brand tents."

Last I knew (or thought I knew) REI owns Cascade/MSR…

Yeah, the tent seems pretty much like a rip-off. There are differences though, too, such as the double wall. I know that I've conceived a number of random designs over the years only to see someone else actually put my idea into production–even though the idea never left my head. Could it be random convergence? I suppose. Tough spot.

FWIW REI did own MSR and CD (and IIRC Walrus and Moss) at one time but sold them off several years ago. Now, to the best of my knowledge they're just retail partners.

Rick Dreher is correct.

Michael,
Read my post again. I think it is pretty clear that the next move is Henry's ("If I was Henry…"). I just made suggestions to Henry as to his possible moves (legal or otherwise). I suggested he try and contact Cascade Designs first, then possibly contact a lawyer, then possibly start a public campaign (again, assuming the worst in every instance). I never suggested that people start without him. I'm sorry if you got confused and thought that I wanted us to do anything without his approval. I agree with you, that would be a very bad idea.
Thanks,
Ross

Not sure why Michael tried to introduce some ambiguity to that HS comment, it maybe "laconic" in the sense of being to the point but I did not find it at all hazy, but of course I could be mistaken. The point was not to get anybody to sue anybody else but to highlight that the trekking pole trick (not the tent design/structure) is unique to TT and MSR should respect that, regardless of patents.
Franco
For the record, I am not about to punch holes into my Therarest Prolite 4 because of this… (another Cascade Design product)

Old news, eh? All right- Thanks, Rick.

Digging back into the archives of this discussion here, but what Teva vs Walmart ultimately resulted in was one less good option in lightweight camp wear. Teva didn't like the strap configuration of Walmart's knock-offs, and although they may have been significantly lighter only in an incidental way, Teva protected their copyright to the detriment of a niche that was arguably worth pursuing, perhaps in partnership. Under their own brand, Teva wouldn't have been likely to offer something so comparably light as to cause injury to their reputation or warranty, stuff that a big box retailer like Walmart, albeit with no creative vision of their own, weathers easily.

It's interesting how much fertile gray area often goes unnoticed or is ignored in the battle to protect an existing product design and to keep an existing customer base. Put another way, patents can sometimes curtail creativity as well as they defend it.

>>This somewhat reminds me of the entire Teva vs. Walmart lawsuit several years ago that resulted in a rare victory against the big box store.