Can you patent a hunk of metal that runs down a track?
If you can replicate Pipeline, Rincon and Snapper Rocks, more power to you. The earth won’t strong-arm you with a sealed cease and desist order. Humans, however, love to do that kind of thing.
As wave pool designs proliferate there’s bound to be some stepping on of toes and lines crossed, as well as just plain blatant rip-offs. But how do we measure if a wave pool design is truly original or merely copied?
In America, the patent works like this: You invent something and want to apply it to a specific use, in this case, wave pools. You don’t want others to copy this amazing idea, so you submit the plans to the US Govt. With this act of filing, the inventor is effectively making the patent public knowledge. The Government then either says “yes, this is your idea, you are the only one who can use this design for X amount of years.” Or, they call bullshit and fail to recognize the genius of your design. (Hey, it’s tough out there.)
China’s wave generating technology looks eerily similar to Kelly Slater’s which looks eerily similar to Wavegarden’s. So what’s keeping everyone from suing each other?
Effectively, the patent is the government granting you sole property right of the design in exchange for making the design public for others to build on later as the years pass.
“In this way, inventors are incentivized to publicly disclose their inventions by the time-limited patent grant they receive,” says engineer, surfer and patent attorney Basil Angelo. “The public benefits from this disclosure that serves as a springboard for further innovation.”
While advancing innovation for humanity is the utopian goal of the patent system, it doesn’t always work that way. And in relation to wave pools and surfing, it can get real messy, real quick.
Kelly Slater v. Greg Webber
In a famous Swellnet article a few years ago journalist Stu Nettle suggested that Kelly Slater and company raced to
“Greg and I spoke at lengths probably 5-6 yrs ago in Coolangatta about wave pools but didn’t catch on to the fact that we were both actually making our own, probably because we were both being tight-lipped or maybe didn’t realize the other was serious,” wrote the 11-time world champ. “I’m sure we were both unaware the other was in motion to make them.“
Both systems involved a circular pool and a hull driven around a track to spin out an endless wave. Kelly said the difference between his tech and Webber’s hinged on the definition of wave types.
“There are clear differences in our technologies, and even Webber is aware enough about that to have modified and re-applied for a patent to include the core idea exclusive to our technology which is a ‘Solitary Wave.’ Greg himself can tell you the difference between a Kelvin Subcritical Wave (boat wake/wind swell wave) that I believe he is producing and a Soliton or Solitary wave (groundswell) that we are producing.”
That soliton or solitary wave has gone on to become the most coveted lump of water in the wave pool world. And now the Kelly Slater Wave Company has applied and been approved for several wave pool patents. You can view many of the KSWCo patents here.
Basil Angelo says Kelly’s wave pool story has legs, siting something akin to “invention overlap.”
“As to the Slater/Webber dispute over who invented what, without knowing the true story there, I will note that it is not entirely unusual for there to be independent innovation, where different teams in different parts of the world arrive at a substantially similar solution to a known problem,” added Angelo. “If multiple groups were out there trying to build a better mouse-trap, er, wave pool, it is not inconceivable that there would be some overlap in their activities.”
In addition, the party that files the patent isn’t always the one who invented it first. In 2013 the United States changed its patent system to fall in line with the rest of the world.
“The United States, like most of the world, implements a first-inventor-to-file approach, meaning that the first person to file a patent application directed to an inventive concept is awarded the patent, not necessarily to the first to invent!”
WaveLoch v. American Wave Machines
But it’s not just Slater and Webber who flurry rushed the patent office to claim their corner of the wave pool market, two household stationary wavemakers took their patent fray to court a few years ago. In 2008 Thomas Lochtefeld’s company Wave Loch filed an infringement suit against Bruce McFarland’s American Wave Machines.
Lochtefeld stated that McFarland, a former Wave Loch contract draftsman and engineer, had access to Wave Loch’s design schematics, proprietary know-how, trade secrets and intellectual property. The suit said he used this info to develop his own sheetwave product.
“Since his departure from Wave Loch, Mr. McFarland has attempted to commercialize a stationary-wave surf attraction called SurfStream,” said Wave Loch. “(This technology) in Wave Loch’s view, is remarkably similar to our FlowRider stationary sheet wave attraction.”
Despite Lochtefeld’s claims of industrial espionage, the case closed in the favor of American Wave Machines. The courts saw the patent infringement suit as merely a guise to quash the competition. In her brief, the presiding judge Cynthia Bashant called out the Wave Loch plaintiffs.
“At worst, plaintiffs are attempting to prolong frivolous litigation to harass American Wave Machines,” wrote Bashant. “The amendments appear to be undertaken in bad faith.”
American Wave Machines said their product, SurfStream was a different technology that has proven to be safer to ride, more cost-efficient to operate, and with a significantly greater rider capacity.
“Having been deeply involved in the initial engineering and development of the Flow Rider, I knew I could make a demonstrably different and superior stationary wave,” said McFarland. “As the market is becoming more crowded with sheet flow devices, this ruling clearly shows that SurfStream is a completely different technology.”
What is patentable?
Anything that may influence wave shape, wave travel, and wave riding experience is patent-able.
“The vast majority of patent applications and patents in the wave pool area are directed to the devices and systems that they implement,” says Angelo. “For example, during the development of a wave pool, the engineers may find that something isn’t working, or discover something that could be improved, and the solutions they arrive at are fertile ground for patenting.”
That means things like pool shapes, wave generating systems and anything that may influence that artificial lump of water that you’re surfing on, could be patented.
If this is the case why aren’t we seeing all-out patent war instead of these isolated skirmishes like with Webber/Slater and WaveLoch/AWM?
And now our favorite part of the article where we just show you a quick, 5-wave-pool comparison. Which technologies overlap?
Wave pools will only improve
It turns out that while in the popular collective view, patents are a way to claim a design as “mine first” or nefariously to curb the competition, Angelo sights on a more altruistic ecosystem in the world of establishing patents.
One of the reasons we have patent law is that everyone benefits from a design due to the hard work and innovation of others. Each inventor can take what has come before them and improve upon it.
“Advances in the technology area have allowed wave pools to create very life-like waves, in some instances, even simulating characteristics of famous surf spots, in terms of speed, height, and how they break,” added Angelo. “They have really come a long way and this was clearly due to the innovative work of others. As Sir Isaac Newton said, ‘if I have seen further it is by standing on the shoulders of giants.’”
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