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BEE-L  December 2002, Week 4

BEE-L December 2002, Week 4

Subject:

Re: SCREENED BOTTOM BOARDS

From:

James Fischer <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Mon, 23 Dec 2002 21:28:26 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (254 lines)

The number of posts on this thread prompted me to ask
my legal beagles earn their retainer this month.

Here is what the senior partner in one of the best
intellectual property firms on the planet says about
the "screened bottom board patent".  He knows that I
am posting this, so I am required to say that:

        "these comments are NOT legal advice.
        Each and every party to any potential
      action should seek counsel specific to
      his or her concerns from an attorney who
      knows the details of his/her situation."

Understand that he has a highly-developed sense of humor,
so when you see [*****] before and after a line, this means
that he was joking with me in that line.


===========================================================

Jim:

There appear to be only two points that might be described
as actual innovations amongst all the claims made:

The first innovation would be the integration of individual
items that existed in the prior art into a single unit.
The "integration" would be the combining of what you label
a "hive stand", what you label a "bottom board" and what you
label a "screen bottom" into a single unit.

The second innovation would be the cutting of bee entrances
into the front of the "hive stand", but this would be a
natural result of the integration described in my preceding
sentence, given that the entrance is nothing more than the
gap at the front of the bottom board, or the gap at the front
of the "screen bottom" when one is used.

Even these two claims could be subject to challenge on a basis
of a statutory bar if there was US publication, public use, or
sale of similar items that included these specific features
more than one year prior to the date of the patent application
at issue.

The anticipatory events that would defeat a claim of novelty
would have to occur at least one day prior to the patent
application date of March 3, 2000, and could include a prior
patent application, printed publication, knowledge (or unabandoned
unsuppressed, unconcealed invention) by others, use by others,
or description in another filed and subsequently granted patent
application.

The application date of March 3, 2000 does not pre-date the
01/18/200 publication of the USDA article you sent "Beltsville
Screen Insert Curbs Bee Mites".

  [ He means http://www.ars.usda.gov/is/pr/2000/000118.htm  ]

This article bears careful examination, since it is a compelling
case of a US government agency placing innovation into the public
domain, and significant potential anticipatory event.

The article describes a physical device that seems to match your
photo # 4 and sketch #1 exactly.  The article also states that the
device was "already being sold in the Brushy Mountain beekeeping
supply catalog" at the time of publication, so whatever device was
listed in this catalog is exempt from, or take priority over,
any claims made by the patent holder, as would any sketches, photos,
or recollection of anyone who saw the USDA devices in use.

The extent of prior art seems to indicate that the patent at issue
may have problems in the area of "obviousness".  Your sketch #2
indicates that someone at the USDA could have created a device very
similar to what was patented with nothing more than a tube of glue.
By gluing hive stand, bottom board, and screen board together, one has
essentially all the utility that is claimed in the patent.

As a result, there would appear to be no basis for any claim made
against your use of a device copied from that described by the USDA
and/or advertised and sold by Brushy.

Further, there appears to be some confusion over the use of the
term "beehive".  The patent appears to address nothing but an
integration of the 3 lowest parts of a beehive, what you label
as "hive stand", "bottom board", and "screen board", but the applicant
uses the term "beehive" to describe his innovation so often, it gives
the impression that the patent is for a new form of beehive.  Could
you keep bees in the device as described?  Apparently not very many
bees, since all the beehives in your photo #8 are as tall or taller
than you.

Here's the claim breakdown.
Text from the patent is normal text.
My comments are in all caps:


  I claim:

  1. A beehive comprising: a bottom board

      THIS IS MORE THAN A "BOTTOM BOARD", CORRECT?
        THIS APPEARS TO BE A MODIFIED "HIVE STAND".
      YOUR EXPLODED DIAGRAM SHOWS "HIVE STAND" AND
        "BOTTOM BOARD" AS TWO DIFFERENT ITEMS, BUT
        YOUR PHOTOS ALL SHOW HIVES WITH "HIVE STANDS"
      REPLACED BY CINDERBLOCKS.  IF YOU DON'T USE
        A "HIVE STAND" AT ALL, THIS PATENT WOULD BE
        DIFFICULT FOR YOU TO INFRINGE.

        ADDITIONALLY, WE DON'T SEE A "BEEHIVE" HERE.
        WE SEE A BASE FOR A BEEHIVE.  IS THIS CORRECT,
        OR IS THE APPLICANT DESCRIBING A COMPLETE BEEHIVE?

  comprising upstanding walls;

        "UPSTANDING WALLS" IS DESCRIPTIVE ONLY.

        [*****]
        ALL WALLS STAND UP.  IF NOT, THEY WOULD BE
        MORE ACCURATELY DESCRIBED AS "FLOORS" IN THE
        OPINION OF THIS FIRM.
        [*****]

  and a screen permanently installed in said bottom board

        AGAIN, DESCRIPTIVE ONLY - MOST "SCREEN BOTTOMS"
        APPEAR TO BE A SCREEN STAPLED OR NAILED TO WOOD,
        OR GLUED BETWEEN TWO LAYERS OF WOOD.

      THE "NOVELTY" APPEARS TO BE LIMITED TO AN INTEGRATED
      "HIVE STAND", "ENTRANCE", AND "SCREEN BOTTOM".

  wherein said screen covers the entire expanse between
  said upstanding walls there being such that there is no
  rim or framework on said bottom board onto which mites
  can land from which the mites can scale said upstanding
  walls and re-infest bees in said beehive.

        THE ABOVE APPEARS TO BE ERROR IN THE PATENT APPLICATION.
      A LACK OF A "RIM" APPEARS IN PRIOR ART, IF YOUR
        DIMENSIONED SKETCHES ARE CORRECT.  YOUR "SCREEN BOARD"
        IS SHOWN WITH THE SAME FOOTPRINT AS YOUR "HIVE BODY",
        WHICH MATCHES THE RAISED SURFACE PROVIDED BY YOUR
      "BOTTOM BOARD".  PLEASE CONFIRM THAT THESE DIMENSIONS
      ARE ACCURATE FOR THE CIRCA 2000 USDA AND BRUSHY VERSIONS
      OF THE DEVICE.

  2. The beehive as set forth in claim 1 further comprising:

  a removable sub-board;

        PRIOR ART APPEARS TO INCLUDE THIS AS A CONCEPT, SO
        PERHAPS THE CLAIM IS AN "INTEGRATED" REMOVABLE
        SUB-BOARD, PART OF A "HIVE STAND".

      YOUR NOTES SAY THAT THE "STICKY-BOARD" IS EITHER
      ADHESIVE SHELF PAPER OR CARDBOARD, SO THERE MAY BE
      AN UNSTATED CLAIM THAT A WOODEN SUB-BOARD IS AN INNOVATION.
        IT WOULD BE VERY WEAK IF SUBJECTED TO A TEST OF OBVIOUSNESS.

  And rear access means located sufficiently distant from a
  location at which bees enter and exit said beehive to remove
  said removable sub-board without intruding upon the entrance
  and exit of the bees.

        PRIOR ART APPARENTLY INCLUDES THIS FEATURE, BUT PERHAPS
      NOT OVERTLY, SINCE THE SKETCHES YOU SENT REQUIRE THE
      BEEKEEPER TO TURN AROUND HIS "EXISTING BOTTOM BOARD"
      BEFORE HE SETS THE SCREEN ASSEMBLY ON TOP.  AGAIN,
      INTEGRATION APPEARS TO BE THE SOLE INNOVATION HERE.

  3. The beehive as set forth in claim 2 wherein said rear access
  means comprises a sub-board entry slot at a location opposite
  to that at which bees enter said beehive.

        THIS REPEATS (2).

  4. The beehive as set forth in claim 3 wherein said bottom board
  further comprises a front wall having bee entry slots therein, a
  rear wall and two side walls and said rear access means further
  comprises sub-board receiving slots in said side walls.

        THE "BEE ENTRY IN THE HIVE STAND" CLAIM ABOVE APPEARS TO BE A
        REASONABLE INNOVATION.  DO YOU KNOW OF ANY PRIOR ART?

  5. The beehive as set forth in claim 4 wherein said sub-board
  comprises a sticky sub-board.

        AGAIN, PERHAPS THE CLAIM IS THE INTEGRATION OF THE
        "STICKY SUB-BOARD" WITH THE "HIVE STAND".

  6. A beehive comprising:
  a bottom board; and a removable sticky sub-board having a perimeter
  enclosing means preventing re-attachment of mites to bees, said
  removable sticky sub-board comprising an unbridgeable gap of a sticky
  trapping substance forming a perimeter around said sticky sub-board.

        THIS MAY ALSO BE A REASONABLE "INNOVATION", BUT IF MORE
      THAN THE "STICKY BOARD" IS "STICKY", THE METHOD OF
      APPLICATION OF STICKY SUBSTANCES STARTS TO GET CLOSE TO
      "PROCESS", UNLESS THERE IS A RECEPTACLE OR SPECIFIC SURFACE
      DESIGNED FOR THE "STICKY STUFF".

        [*****]
      ALTERNATIVELY, THE APPLICANT APPEARS TO CLAIM TO HAVE INVENTED
      AN OBJECT THAT HAS AN UNBRIDGEABLE GAP AROUND ITSELF, WHICH MAY
      BE A SIGNIFICANT ADVANCE IN THE FIELD OF TOPOLOGY.  THE POTENTIAL
        APPLICATIONS FOR "UNBRIDGEABLE GAPS" WOULD BE MANY IN THESE
        TIMES OF THREATS FROM TERRORISTS.  EVEN MORESO IF THEY ARE
      "STICKY" ENOUGH TO HOLD THE TERRORISTS UNTIL THE POLICE ARRIVE.
      [*****]

  7. The beehive as set forth in claim 6 wherein said perimeter enclosing
  means is formed by a perimeter rim comprising a front member, two side
  members, and a rear member.

        THIS IS SPECIOUS - IT HAS 4 SIDES.
        ALL PARTS OF BEEHIVES APPEAR TO HAVE 4 SIDES.

  8. The beehive as set forth in claim 7 wherein said bottom board further
  comprises upstanding walls and said beehive further comprises a screen
  permanently installed in said bottom board, said screen covering the
  entire expanse between said upstanding walls.

        THE SKETCHES AND CATALOG PAGE SCANS YOU SENT SHOW THAT ALL
        SCREEN BOTTOM PRODUCTS INCLUDE THESE FEATURES.  IF THE USDA
        AND BRUSHY VERSIONS HAD THESE FEATURES, THE CLAIM WOULD BE
      WEAKENED TO THE POINT OF BEING "ERROR".

  9. The beehive as set forth in claim 8 wherein said upstanding walls
  further comprise a front wall having bee entry slots therein, a rear
  wall and two side walls.

        AGAIN, THE BEE ENTRY SLOTS INTEGRATED INTO THE HIVE STAND APPEAR
        TO BE A REASONABLE "INNOVATION".

  10. The beehive as set forth in claim 9 further comprising rear
  access means to remove said sticky sub-board.

        REPEATS CLAIM (2).

  11. The beehive as set forth in claim 10 wherein said rear access means
  further comprises a rear slot in said rear wall.

        REPEATS CLAIM (3).

  12. The beehive as set forth in claim 11 wherein said perimeter enclosing
  means further comprises notched members.

        WE CAN'T SEE WHAT NOTCHES HAVE TO DO WITH ANY OF IT, EXCEPT AS
        A METHOD OF WOOD JOINERY.  IS THERE A BEEKEEPER-SPECIFIC USE OF
        THE TERM "NOTCHED"?

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