Use of Stots TemplateMaster Woodworking Tool Limited to One Shop (licensing going crazy)

Ed Foster's Gripe Log ^ | 10/22/2003 | Ed Foster

[antiRepublicrat]

A small woodworking tool manufacturer, Stots Corporation, includes a license agreement on its TemplateMaster jig tool. The tool is licensed, not sold, and customers cannot sell it or lend it to others. Nor can they sell or lend the jigs they make with it.

We’re all familiar with license agreements on software tools that limit what you can with the product. But what about a license agreement on a real tool limiting what you can with the product and the things you make with it?

“Shrinkwrap licenses are showing up everywhere,” a reader recently wrote. “I just bought a jig for making dovetailing jigs -- this is woodworker talk if it's unfamiliar to you. The master jig contained a license that says I've licensed the master jig, not bought it. The license says I can't lend or sell the master, and furthermore I can't lend or sell the jigs I make with the master.”

The reader was referring to Stots Corporation of Harrods Creek, KY, and the user agreement for its TemplateMaster product. Sure enough, the Stots license says TemplateMaster may be used “in only one shop by the original purchaser only” and that “you may not allow individuals that did not purchase the original Product (to) use the Product or any templates produced using the Product…”

A FAQ document on the Stots website explains that the license is necessary because “the purpose of the TemplateMaster is to clone itself. Therefore we are verifying your honesty that only you will use the tool and you will not be passing it around to others to use for free. It is exactly the same as the ‘shrink wrap’ agreement that comes with almost all computer software. Please help us fight ‘tool piracy’.”

Challenged as I am to even hammer a nail, I certainly can’t judge the uniqueness of the TemplateMaster product compared to other woodworking tools. The reader doubts it’s particularly novel, in that the template or jig one creates with it will be virtually identical to “Keller” jigs that have been around for many years. “The key difference is that the instructions that came with the Keller jig said, in not so few words ‘here, use this jig to make a dovetail joint’,” the reader said. “The Stots jig, which is geometrically equivalent, comes with instructions that say ‘use a duplicating router bit to copy this jig to make a jig that looks almost exactly the same as me -- and exactly the same as the Keller jig -- then use that jig to make a dovetail joint.”

But even assuming the Stots tool is a wonderful innovation, does that give its inventor the right to restrict how you use the tool? The patent law doctrine of exhaustion would seen to overrule such restrictions, but that doctrine took a hit in one recent case. And then what about the idea of restricting how customers use the tools they make with the TemplateMaster? Don’t let the software companies hear about that one, or next thing you know there will be usage restrictions on who we can share our data with.

[bk1000]

"I think that if it were possible to come up with a microchip that "turned off" a product when not used by the original purchaser, companies would go for it."

Like 'smart' guns, passwords, fingerprint scanners, PINs. etc.

[Edsquire]

Courts have held that "experimental users", people who duplicate a patented object for their own use and enjoyment without the intention to sell or profit from the resulting duplication, are not infringing on the patent holders ability to market and profit from his invention, and are therefore exempt from patent law.

I believe you are reading the defense of experimental use far more broadly than the case law supports, primarily by an incorrect definition of the term. The defense is strictly limited to bona fide research; it has been expressly rejected where the "research" is to adapt the patented invention to a business purpose (e.g., generic drugs), and has never to my knowledge been defined to encompass "personal use and enjoyment."

In fact, your assertion that infringement is legal for one's "own use and enjoyment without the intention to sell or profit from the resulting duplication," is not supported by your proffered justification that it is "not infringing on the patent holders ability to market and profit from his invention." Your example is illustrative: If you duplicate every detail of a Jeep (or two) in your garage, including patented parts, for your own use and enjoyment, you have very much affected the patent-holder's profits -- you've cost him one (or two) sale(s) (and please don't resort to the software pirate's lame excuse that "I would not have otherwise bought one, so no lost sale"; you're riding around the countryside in a patented invention for which the patent holder received no remuneration). I am positive such use would not be accepted as "experimental," and would not be considered a valid defense to a charge of patent infringement.

As a practical matter, an individual making one infringing copy for personal use is not likely to be sued, particularly where the infringement involves a woodworking jig rather than an automobile... but that doesn't mean the activity is legal. (And who knows, the woodworking tool makers association may take a page from the RIAA and surprize us on the enforcement front...)

If I were a hobbiest and built my own copy of this tool so that I could build myself a better gunrack for my family room, it WOULD be legal.

You could do so with impunity, but it would most definitely not be legal.

[Arthalion]

I believe you are reading the defense of experimental use far more broadly than the case law supports, primarily by an incorrect definition of the term. The defense is strictly limited to bona fide research; it has been expressly rejected where the "research" is to adapt the patented invention to a business purpose (e.g., generic drugs), and has never to my knowledge been defined to encompass "personal use and enjoyment."

I disagree, in that I'm taking my definition of experimental use directly from current and historic case law. Just last year Duke University LOST a patent infringement lawsuit because they incorrectly tried to classify some for-profit infringement as experimental use. The Federal Circuit Court of Appeals stated in their ruling that the "very narrow and strictly limited experimental use defense" applies only if use of the patented invention is "solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry," and that the defense does not apply if the use is "in furtherance of the alleged infringer’s legitimate business". The experimental use defense for private, non-profit, and non-commercial infringement has been case law since the early 1800's, and has been well established in multiple rulings since.

If I wanted to duiplicate our theoretical "patented Jeep" for my own enjoyment, it's perfectly legal for me to do so. Why? Because my duplication of that Jeep DOES NOT present a danger to their business.

you have very much affected the patent-holder's profits -- you've cost him one (or two) sale(s) (and please don't resort to the software pirate's lame excuse that "I would not have otherwise bought one, so no lost sale"; you're riding around the countryside in a patented invention for which the patent holder received no remuneration).

I disagree, and in this case feel that the "wouldn't have bought it anyway" excuse actually DOES apply. How many people build their own electronics, cars, and medicines? Very few. How many could legally do so if they wanted? All of them. Why don't they? Because it isn't worth the time, or added expense, to do most of those things...it's almost always cheaper and faster to purchase a mass produced item from its patented owner than it is to duplicate it yourself. The few people who DO create these kinds of things on their own typically do so out of pride ("Cool, I built that!"), or because they want to understand how they work. That is the EXACT reason the experimental clause exists.

My theoretical Jeep would be for "amusement" (it would be fun building it AND using it), and to "satisfy idle curiosity" (how hard is this really, and can I do it?). Have I cost Jeep a sale? No, because I WOULDN'T have bought one anyway, because 'somebody elses Jeep' wasn't what I was looking for.

Of course, this is really all irrelevant as it pertains to the article we're discussing. In this case, the Stots Template Master isn't a patented item, and is neither covered by U.S. Patent law nor U.S. Copyright law. Their "shrinkwrap" license isn't legal or enforceable, because it's based on sections of copyright law that don't apply to physical inventions.

[Edsquire]

The Federal Circuit Court of Appeals stated in their ruling that the "very narrow and strictly limited experimental use defense" applies only if use of the patented invention is "solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry,"

And while you may claim riding around in your Jeep copy is amusing, intellectually satisfying, and philosophically enlightening, the fact remains that your copying it gets you from hither to yonder, in the uniquely Jeepish way, without paying Jeep for its inventions. In the face of such financial advantage, the high-minded claims as to motive ring a bit hollow.

The Duke case, and those cited in it, involved universities and/or businesses. AFAIK, no case is on point to the proposition you assert -- that every individual is free to infringe any patent so long as he can claim it amuses him to do so, and further claims that he would not have purchased a commercial product embodying the patented invention even if he didn't copy it. And, as I pointed out earlier, there likely never will be, since companies don't generally bring patent infringement lawsuits against individuals, and when they do, accused infringing individuals don't generally fight the lawsuit to the Federal Circuit. Hence, it is largely an academic question. The case law simply does not support or refute the broad application of the experimental use defense to individuals outside of the context of business development or the educational environment. All of the case law does, however, emphasize the narrow and limited application of the doctrine.

How many people build their own electronics, cars, and medicines? Very few.

How many people build their own woodworking jigs, or write their own software? Lots. Depending on the application, the simplicity of the invention (many of which are simply procedures), its ease of fabrication, and the cost of commercially available alternatives, unfettered copying may well render some patents moot -- a result I do not believe the "very narrow and strictly limited experimental use defense" will be widely applied to allow.

Of course, this is really all irrelevant as it pertains to the article we're discussing.

I know, but it's an interesting question anyway...