I am sure many of you have read the discussion and debate regarding Tunze accusing Jebao WP40 and WP25 of patent infringement on multiple threads. Among all the comments that were posted I valued the comments made by one individual the most, Joshlawless who claimed he is a patent lawyer. These are his quoted comments (in green) that I pulled regarding the Tunze's US Design Patent D567,821.
"œUtility patents are for protecting inventions.
Design patents are for protection ornamental designs.
If Tunze had obtained a UTILITY patent for their invention, I would be cheering their appropriate use of the patent system.
Tunze obtained a (likely invalid) DESIGN patent for the ornamental design of their Turbelle pumps. Which have no ornamental features. They are abusing the patent system, and bullying small vendors with an inappropriate threat to sue them, and are skirting dangerously close to unfair competition and illegal anti-competitive practices.
Design patents are intended to promote the "decorative arts." They have no relationship to "inventions."
To prevent people from trying to get patent protection for products that don't deserve them, the US Patent and Trademark Office and the Federal courts explicitly forbid design patents from being used to product (I think he meant "œprotect") the functional aspects of a product."
"Design patents are cheap and easy to get, largely because they provide very little patent protection. They only prevent someone from making a product that looks substantially the same as the one in the design patent illustrations. They don't protect the function of a pump, and to the extent any of the design features are functional instead of ornamental (e.g., the design of the cage surrounding the impeller might be functional - letting in water and not snails), then the patent provides no coverage for those features."
"œAny feature which is primarily functional is ineligible for design patent protection -- only the ornamental features are protected by a design patent.
If Tunze had arranged the water inlet slits in the housing such that they spelled out TUNZE, instead of being parallel slits, then that might be an ornamental feature (although this would be arguable at trial, because they still serve a function).
If Tunze had embossed anemones and clownfish around the outer surface of the nozzle (which is currently un-adorned), then that would be an ornamental feature, and if Jebao's pump similarly had clownfish and anemones in the same place on their pump, then Tunze would have a case. That's the kind of thing a design patent is for."
"œThe fact that there are other ways to configure a directional pump would tend to show that Tunze's configuration is at least partly ornamental. But, if the way Tunze has configured their pump provides improved functionality over those other designs, then that configuration is not ornamental, and is therefore outside the scope of the design patent's claim.
Does the round Turbelle housing permit the pump to be directed over a wider range of angles inside the aquarium (when compared to the earlier blockish housing)? Then that would tend to indicate that it's a functional choice."
"The claims for the Tunze magnetic mount require that one of the sides have "a plurality of elastically deformable holding cups." Haven't seen a photo of the Jebao magnetic mount to know whether it would meet this (and every other limitation), but it's clear that Tunze doesn't have a patent on holding things with magnets (e.g., Vortechs, algae scrapers, pH probe mounts, dosing tube mounts, etc., etc.)"
"They ABSOLUTELY WILL NOT BE STOPPED AT CUSTOMS. For that kind of injunctive relief, a company has to WIN A LAWSUIT in a COURT OF LAW.
As far as I can see, all that has happened so far is that Tunze has sent threatening letters to various vendors claiming 1) that they have a valid patent that 2) is infringed by the WP-40. Both of these would have to be established in a trial (or administrative proceeding, for the ITC) before they could expect the US government (customs) to start seizing shipments."