Patent enforcement (or trolling) in the bump fire industry?

[wojownik]

I've been following the some recent activities among manufacturers of bump fire products - covered in a number of other forums - and was wondering if anyone else is aware of what is going on vis a vis one manufacturer (SlideFire) and their somewhat aggressive pursuit of competitors, claiming patent infringement across some broad claims.

For example:

Bair Arms has/had a bumpfire solution, but appears to be folding due to litigation from Slide fire. The Bair product is dissimilar from SlideFire's solution, but there is a very broad (and I think disputable) claim in a patent described below that seems to be the heart of the issue.

JT Grips had a bumpfire solution, and even their own patent, but bowed before threats of litigation from SlideFire late last year.

BumpFire had a solution, and this one actually did look like pretty bold clone of the SlideFire product.

Several other bumpfire products have been removed from the market as well (Franklin Armory, etc.).

So, a few legal questions (one patent related, the other procedural).

SlideFire (a TX company) filed a patent infringement claim in Texas courts against Bair Arms (a Virginia company) several months ago. On May 22, 2017, SCOTUS ruled that a patent infringement suite must be filed in the jurisdiction of the defendant. In this case, that would not be Texas. Within the past few days, a joint motion was filed with the Texas court, presumably for a settlement (not sure if Bair is operating without any legal counsel, or competent counsel).

Questions
- given that a SCOTUS decision was issued, how might this impact the complaint above? Would the judge have to dismiss the case, in light of Heartland v. Kraft?
- Can the judge accept a settlement in this scenario, since SCOTUS had ruled that a patent infringement cases need to be filed in the defendants state (i.e. Bair in VA or DE), rather than in TX where SlideFire is based?

The SlideFire patent itself is very curious (see https://www.google.com/patents/US8127658), specifically Claim 1, which seems to describe a method of simply holding a firearm with a "body part" while an "actuator" reciprocates against the trigger. It would seem that Claim 1 would be covered by prior art, dating back decades. Rather than reprint the claims here, take a look at the patent filing - Claim 1 seems to be both prior art, not novel, and rather obvious. The system described in subsequent appear seems better defined, but Claim 1 seems to be the basis for SlideFire going after any would-be competitor.

What is your interpretation of the claims being asserted?

I seem to recall products back in the 1990s, such as a belt-hook arrangement that, fundamentally, did the same thing as described in Claim 1.

Hopefully this fits legal forum theme - if not, mods please move elsewhere if appropriate.

 

[Frank Ettin]

The OP has asked a couple of technical questions dealing with a very specialized area of the law -- patent law. I'll leave the thread open here, at least for now.

But let's keep the discussion focused on the OP's questions.

 

[HankB]

I'm not an attorney of any type, let alone a patent attorney, but I am a named inventor on a number of patents, so I'm not entirely ignorant of patent law. In past discussions with corporate patent lawyers, some of the points in the OP have come up, so here's my recollection of what was said.

* In terms of novelty and prior art, it is quite difficult to get a patent invalidated - but it happens. The best way to do this is to find prior art that bears directly on the patent claim in question which was NOT cited by the claimant in their application. This prior art can be another patent (best), a magazine article, a product, or even something published in a newspaper - but of course, it all has to be properly documented. Failure to cite prior art is almost - almost - a prerequisite. It gives the patent office an "out" in that you're not saying THEY made a mistake in issuing the patent, but rather that the applicant didn't properly research and disclose known prior art. (Courts tend to defer to what the patent office says when they can.) There are some other ways of potentially invalidating a patent - for example, proving the actual inventor wasn't on the application - but that route is more difficult.

* Arguing that something is "obvious" without being able to cite specific prior art is a difficult way to achieve success. Patent examiners are people, too, and without prior art to cite, you're going to have difficulty convincing the patent office that they made a mistake in issuing a patent due to "obviousness." (Again, courts tend to defer to the patent office when they can.)

* In a patent suit, the big claims are the independent claims; I think (but I could be wrong) that the dependent claims will fall if the independent claim they cite falls. So claims 1 and 13 are the "biggies" in the Slidefire patent.

* Patent litigation can be expensive. I worked for a very large, highly diversified tech company which was regularly involved in patent lawsuits as both plaintiff and defendant; the "average" cost of litigating a patent was $3,000,000. This cost tends to discourage court fights, especially when it's a "big guy / little guy" situation.

 

[entropy]

If being sue for patent infringement, have dated material; plans, etc. My uncle built a system to heat his home with the fireplace (via ducting) and a company later came up with a similar rig and manufactured it for sale. They somehow found out about his system, and subsequently sued. The only thing that kept it from going to trial were the many photos of the manufacturing process he took. (Remember back in the 70's, when photos came back from the Kodak kiosk with dates on them?) He never drew out any plans, typical for him, but the pictures saved him from being sued for development of something for personal use 10 years before someone else decided to patent it. It's kind of like Sikorsky suing DaVinci for developing his 'ornithopter'. (minus the huge time gap)

 

[HankB]

. . . My uncle built a system to heat his home with the fireplace (via ducting) and a company later came up with a similar rig and manufactured it for sale. They somehow found out about his system, and subsequently sued. . . .

Very odd that a company would even hear that someone built something like a heating system for personal use in their own home, and then would actually sue them. A lot of people do stuff for themselves that violates patent or copyright law, but it's almost unheard of for them to have legal problems unless they start manufacturing or distributing the items to others, or perhaps publicizing what they've done.

On the other hand, I suspect the fact that your uncle had his system up and running a decade earlier put their patent on shaky ground. ESPECIALLY if there was any public disclosure, which might be something as simple as an article in the local paper or a letter to the editor of an HVAC magazine.

 

[Docduracoat]

I am sad to say that there is a court filining in Texas dated June 2017
It states that Bair Arms agrees not to make or sell "any accused bumpfire products".
The Bair Arms website no longer shows anything available for purchase
That is too bad as I have their bumpfire for the CZ Scorpion
It works perfectly!
It is just a little plastic slider that goes on the trigger
Grip the slider tight and push forward with the other hand
The cyclic rate on the Scorpion is unbelievably fast!
I have a slidefire for my AR and it works well
I would sayy that the slidefire is a little easier to learn, but both are easy to use
Bair Arms had them for a lot of different guns
I hope they manage to come back into business again

 

[Frank Ettin]

The litigation seems to have been settled.