Holster makers opinions requested

[JMorgan]

While I'm fairly new to making holsters (about ten over the past few years) and hope to learn about holsters here, maybe I can help explain patents. I'm not a patent attorney, but I've been involved in patents and patent disputes as a product engineer at a couple of companies.

There are three types of intellectual properties: copyrights, trademarks, and patents. Copyrights are not relevant to holsters unless one writes a book or makes a video on how to make holsters; designs or looks of a holster are not copyrights. Trademarks are legally protected phrases or symbols that one uses for advertising or as a trade name. Trademarks have to be registered (and re-registered and can be re-registered until dooms day) with the US Patent and Trademark Office. If one stamps Bianchi on their holster, they are violating Bianchi's trademark and deserve a lawsuit. If a holster maker registers a trademark for a phrase (e.g., "Summer Special "), then another maker cannot use that same phrase to advertise their product. If you're serious about making it big-time and is worried about someone else selling holsters falsely labeled as being made by you, then you can register your trade name and/or symbol with the US Patent and Trademark Office. Note that one must defend a trademark--one has to have their lawyer write nasty-grams to infringers that are discovered for the trademark to remain valid. The point is that one can't allow flagrant infringement and then ten years later selectively sue one abuser. That is not, by the way, how patents work.

As others have pointed out, there are design patents and utility patents. Design patents (have a D prefix) are for the look of something--if someone carbon copies an unexpired design patent they could be sued. Utility patents are different and often miss-understood. A utility patent isn't a patent on a complete invention per se, rather a utility patent is the description of an invention (with explanation as to why it is novel and not part of prior art, why it is non-obvious, why it is useful, etc.) and culminates in claims. The claims are what utility patents are all about. The claims are in the back of the patent. The claims are for specific features or aspects, and one is not necessarily sued for duplicating the item patented but for violating one or more claims in the patent. The object in question may not resemble the item in the patent drawing and still violate a claim, or vice versa. Adding something to a design (a common misconception) does not necessarily mean that it doesn't violate a claim. A claim should be fairly specific: a novel way of keeping a holster closed, an entirely new set of belt loops, etc. The Berns-Martin holster had the spring-closed front opening feature patented and one of the early pancake holsters had the feature of three belt loop slots (to allow for cross draw or strong side) patented. In both cases they were novel, non-obvious, and resulted in very specific claims. Design and utility patents both have a finite life and cannot be re-registered.

The US patent and trademark site can be searched for free. www.uspto.gov . Haven't used it in a while, and used to one had to download a program called alternatif to view the actual patents. The newer patents are available as photo-images of the originals while older patents were available as text summaries. For a nominal fee the older ones (from way, way back) can be purchased from the US patent and trademark office--might be good for historical research. One can search by number, by owner, by inventor, etc.

As to the real world, not much point, in my opinion, of patenting something unless you've come up with something absolutely amazing that could make many thousands of dollars of profit or be sold to a large company. In that case don't show to the public it or sell it or post pictures of it until a patent application has been submitted--or else it becomes prior art (however, one can show it or sell it after the application goes in and mark it "patent pending"). You don't have to be a lawyer to submit a patent application, but a patent lawyer could be invaluable to phrase the claims such that they were enforceable and could help do a search for prior art and basically make the patent examiner happy and up the odds of a successful application. Even if you don't use a lawyer, it will cost at least a few thousand dollars in application fees. If you do develop something patentable but don't want to bother with patenting it and don't want a holster company to patent it either, then post pictures and write about it such that the public is then aware of it. You've then put forth evidence that it is prior art, and although a patent examiner wouldn't find that evidence and might issue a patent by someone else who uses your idea, that patent could be shot down if it ever went to court.

As to other people's intellectual property, don't use someone else's trade name or trademarked phrase or symbol--that should be obvious. Trademarks are the easiest things to look up at www.USPTO.gov. Keep in mind that trademarks can be re-registered forever. If you wanted to stamp your holster Berns-Martin, then find out if that trademark is still registered. If it is expired, then you can use it, or even register it yourself and become the owner of it. Sort of like web site names. If you want to say that your inside the pants holster is inspired by Milt Sparks's Summer Special, then be careful how you word it and make it very clear that you are not Milt Sparks and that it is not a genuine Summer Special or better yet just don't go there at all--even if Milt Sparks didn't trademark "Summer Special" it would be in poor taste to highjack it. However, when a phrase enters popular vocabulary then I wouldn't hesitate to use it (e.g., "Jordan style" or "FBI tilt").

For patented items, get a copy of the patent and see what it really says. If someone put in a design patent for a Tom Threeperson's holster for a S&W K frame last year, well, they may as well patent running water--it isn't worth the paper it is printed on. If it really is a distinctive and new design then I'd avoid a carbon copy, or maybe much of a copy at all. Design patents are not what I have experience with, but if a consumer would not confuse your product from the design patented product, then I wouldn't worry about it. For a utility patent, read the claims--that is really what it is all about. My guess would be that a lot of the current holster patents would have to do with retention designs for the uniformed law enforcement market and probably aren't too relevant to the types of holsters that people here make. If you do violate a patent often enough for a company to notice it, expect a cease and desist letter from their lawyer. If you are a little guy and have your lawyer say how gosh darn sorry you are and that you'll never do it again it would probably be the end of it--of course, this is more convincing if you actually did violate their patent on accident and on a small scale. If you violated it a lot, then they might ask for royalties and agree not to file suit if you pay them. However, if you're a little guy and don't sell nationally then they would likely have to file suit in your state. And it makes a favorable impression on no one for a big bully company to rough up the locals; especially some good old boy working out of their garage. They sure don't want their patent shot down by a sympathetic judge over five holsters you made so that their competitor can then start making them by the truck load. An exception to this may be if they are looking to pick a fight with a little guy that they can easily prevail over in court so as to build a legal case for their patent being valid. If big company A has a questionable patent that big company B is infringing on, and big company A knocks on your door and you are in obvious violation--then watch out. You could beg company B to come to your aid, but again, for someone working out of their garage this isn't likely to happen as it could back fire on company A. If you make a lot of the same kind of holster or dabble in holster designs that make up the bread and butter of the major makers and borrow distinctive features from them then I'd do some research, otherwise I personally would not worry about it. If you see a picture of it in Six Guns by Elmer Keith, published in the 1950's, then have at it.

To me half the fun of holster making is designing something a little different--it may be a S&W like millions of others, but the holster it is in is one of a kind. There really is no point in making a custom copy is there? Who would go to a custom car builder to have a factory car built from scratch? That wouldn't just be a patent violation, that would be silly.

[Tac]

JMorgan.... That is about the best written explianation of this topic as I have seen posted. Thank you for taking the time to post it here.

[K-Man]

JMorgan, thanks for posting that information. The only thing I would add with respect to patents is to recommend getting a copy of the prosecution history of the patent if you're concerned about possible infringement. It provides a great more detail about the patent and its claims. What you see online at the USPTO website is just a synopsis, and lacks the meat of the matter, if you will.