oralwantabee-ga,
Thanks for this question...it was one of those topics that just
burrows in, and after a while, becomes a mission unto itself. Just
what is the boundary between apropriate and inappropriate use of
non-original parts like the replacement brush heads that you
referenced?
Since you specifically requested a "both sides" arguement, I've
structured my answer accordingly, along with providing some general
overview information on intellectual property protections and
infringement. At the end, I've cited some documents and legal cases
that are germane to your question, in case you want to look into the
matter in more detail
If anything in my answer below is unclear -- or if you simply require
additional information -- let me know, and I'll be happy to assist you
further.
pafalafa-ga
==========
In general, a commercial product can be protected by patents,
trademarks (and other "marks") and copyright, all of which can be
relevant to a product like the Oral B electric toothbrush.
Patents protect the product itself -- a patented invention cannot
legally be reproduced by others without the consent of the
patent-holder.
Trademarks protect the brand identity. Only Rolex has a right to call
a watch a "Rolex".
Copyright is perhaps the most unusual form of product protection,
because it's only very recently the case that a product like an
electric toothbrush might have become eligible for copyright
protection. In addition to books, music and the like, copyrights can
now also pertain to software and integrated chips. If the toothbrush
(or any similar device) contains a chip that it needs to operate, that
chip can be copyright-protected.
The ability of a third party to legally create replacement parts --
such as the replacement head by Reliadent -- depends on a number of
legal principles and precedents, which can sometimes compete with one
another. These include:
--The type of intellectual property protections that come into play.
Is the toothbrush patented? Is it covered by a registered trademark?
Is copyright protection a relevant consideration?
--The requirement for a patent to pertain to a specific product,
rather than to a general concept.
--The specifics of the matter, e.g., what is the wording of the
patent? What, exactly, is covered, and does the replacement part
differ substantially from patented property?
--The customer's legally recognized "right of repair".
--Braun's legal rights to protect against counterfeiting,
"contributory infringement" or dilution of its brand name.
--The generally recognized legitimacy of the practice of providing
aftermarket or replacement parts from third-party suppliers.
==========
So, let's get down to the pros and cons regarding the toothbrush.
PATENTS:
It is virtually impossible to patent a broad, categorical item such as
a wristwatch, a car, a telephone, a computer, or for that matter, an
electric toothbrush.
Instead, patents generally describe a very specific item, and describe
the components making up the item, as well as the manner in which they
are pieced together to make the whole item. A patent may include
numerous variations (often in an attempt to deter imitations), but it
ultimately covers a fairly precisely-described device, rather than a
broad category.
The link in your question to the Braun patents was not working when I
tried it. However, I found a Braun patent at the US Patent and
Trademark Office website by searching on [ braun AND electric AND
toothbrush ]:
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=/netahtml/search-adv.htm&r=14&f=G&l=50&d=ptxt&S1=((braun+AND+electric)+AND+toothbrush)&OS=braun+AND+electric+AND+toothbrush&RS=((braun+AND+electric)+AND+toothbrush)
In particular, I reviewed patent # 6,308,359 , issued to Braun October
30, 2001 for:
Brush section for an electric toothbrush
As is usual, there is a ton of convoluted language -- with
accompanying drawings -- laying out the specifics of the invention.
Here's a typical passage:
==========
We claim:
1. A replaceable brush section for an electric toothbrush hand piece
having a mount at one end thereof and a drive shaft rotationally
disposed within the mount and protruding outwards thereof, said brush
section comprising a plastic carrier tube to which is fitted a bristle
carrier comprising a plurality of teeth-cleaning bristles, said
bristle carrier moveable for rotation relative the carrier tube, a
longitudinal axle rotationally disposed within the carrier tube and
drivingly connected to the bristle carrier and adapted to be coupled
to the rotary drive shaft of the hand piece, and said carrier tube
adapted to push onto the mount of the hand piece of the electric
toothbrush in radially surrounding relation to the mount, and at least
one resilient element formed of plastic and attached to the brush
section and which is arranged between a radially inwardly directed
surface of the carrier tube and a confronting radially outwardly
directed surface of the mount, wherein the resilient element biasingly
bears against the mount surface thereby frictionally hindering
inadvertent motion of the carrier tube relative the mount.
[The drawings of the toothbrush provide even more detail]
FIG. 1 shows an electric toothbrush 1 having a brush section 2 and a
hand piece 3. The brush section 2 is plugged on the hand piece 3 but
can be pulled off the hand piece 3 in order, for example, to be
replaced by a different brush section 2....The brush section 2 has an
elongate carrier tube 4 with a bristle carrier 5 projecting at
approximately right angles from 43 the tube end remote from the hand
piece 3. The bristle carrier 5 is equipped with a plurality of
bristles 6. At its end close to the brush section 2 the hand piece 3
has a mount 7 on which the brush section 2 is plugged.
Further accommodated in the hand piece 3 are an electric motor and a
storage battery. With the electric toothbrush 1 activated, a rotary or
pivotal motion produced by the electric motor is transmitted by means
of shafts, couplings, gears and the like to the bristle carrier 5
which thus performs a rotary or pivotal motion about an axis
approximately parallel to the bristles 6...With the electric
toothbrush 1 actuated, a user can place the bristles 6 against the
surfaces of his teeth and use the rotary or pivotal motion of the
bristle carrier 5 to clean and care for his teeth.
A sleeve 8 is provided in the end of the brush section 2 close to the
hand piece 3. In this area of the brush section 2 the carrier tube 4
is of an approximately cylindrical configuration and the sleeve 8 is
plugged in the carrier tube 4. The sleeve 8 is secured against rotary
movement in the carrier tube 4 as by ridges or the like engaging in
grooves. Furthermore, the sleeve 8 is secured against being pulled out
of the carrier tube 4 by detent elements or the like....
==========
This may or may not be the actual patent pertaining to the toothbrush
head that you asked about, but regardless, the general language would
be similar in any relevant patent.
Does the Reliadent product infringe this patent?
PRO: Yes it does. Braun's patent not only gives us the right to
produce the toothbrush head, but also allows us to exclude all others
from doing so. The Reliadent replacement head is clearly designed to
be compatible with the Braun electric toothbrush, and in doing so,
they replicated virtually all the main features of the patented
product, including [NOTE: I'm making this up, since I have not
mecahnically examined the two devices, nor am I competent to do so]:
--a drive shaft rotationally disposed within the mount
--one resilient element formed of plastic and attached to the brush section
--a resilient element {that] biasingly bears against the mount surface
thereby frictionally hindering inadvertent motion of the carrier tube
--A sleeve...in the end of the brush section...close to the hand piece...
etc.
CON: No it doesn't. Reliadent specifically changed several key
features of the toothbrush head in order to insure that it would
differ in substantial ways from the patented product. For instance,
the Braun replacement head contains two frammistats, whereas the
Relident head has only a single frammistat [NOTE: again, a made up
difference, since I don't know the specifics of the devices].
Therefore, this is an independent and novel device that does not
infringe on any existing patents.
Furthermore, the Reliadent replacement head is protected by
well-established case law pertaining to the customer's right of
repair. The US Supreme Court has ruled that when a customer
purchases a product, that purchase includes the right to preserve the
product in good working order, even if that means replacing parts, and
even if the replacement parts are not provided by the original
manufacturer. This is an everyday aspect of the marketplace.
Consumers can buy replacement parts for their cars, telephones, stereo
systems, and almost all other devices, even though those parts are not
made by the original manufacturer. Braun's toothbrush does not
warrant an additional level of protection beyond these other everyday
market products.
TRADEMARKS:
Is the Braun/Oral-B trademark being infringed?
YES: There is a very real and obvious chance for confusion in the
marketplace, as customers confuse the Reliadent product with the
genuine Braun/Oral-B replacement part. The replacement brush head is
visually very similar. The packaging is such that both the Braun and
Oral-B trademarked names are prominently displayed. In essence, this
is a counterfeit product that infringes on our trademarked products.
NO: There is no opportunity for confusion among consumers. The most
prominent wording on the package is that of the Reliadent brand name.
The design and color scheme of the replacement heads differ markedly
from the design used by Braun. The package clearly states that Braun
and Oral-B are NOT trademarks held by Reliadent, and that Reliadent is
not affiliated in any way with the Braun or Oral-B trademarks.
Braun's claim of counterfeiting is spurious and should be rejected.
COPYRIGHT:
Is the toothbrush head copyright-protected, and if so, does the
Reliadent product violate copyright?
YES. The wiring and circuitry of the Braun product is a unique
expression of logical design that is protected by copyright, as
recognized by the Digital Millennium Copyright Act (DMCA). The
Reliadent product reproduces this circuitry almost in its entirety,
and therefore, violates the copyright held by Braun.
NO. The DMCA recognizes the validity of copyrighting chip-protection
devices. For example, a printer cartridge may need a specific chip in
order to be compatible with a particular type of printer -- that chip
can be copyright-protected under DMCA. However, the Braun toothbraush
contains no such compatibity-protection chip. By opting not to
include such a device in their toothbrushes, they forgo any claims to
copyright protection. Their claim that an ordinary and commonplace
electric circuit is unique and is copyright-protected is spurious and
should be rejected.
==========
I've made reference above -- both directly and indirectly -- to a lot
of material regarding intellectual property guidelines, case law and
precedent. Here are a few key documents you should be familiar with,
in case you would like some additional information:
==========
http://www.devicelink.com/mddi/archive/98/01/026.html
Refurbishment of Medical Devices: Patent Infringement or Permitted Repair?
Understanding judicial precedents can help manufacturers protect their
medical device patents.
[Though focused on medical devices, this article gives a great
overview of the balance between protections vs marketplace
competition, along with reviewing some of the key legal cases on this
topic]
"As the use of remanufactured medical devices continues to increase,
fueled by market demands for health-care cost containment, so too will
the attention that medical device manufacturers must pay to the
question of when refurbishing becomes patent infringement..."
==========
http://www.partseek.com/News/January-2004/INDNEWS-FullStory1.html
[As the link here makes clear, it is not often clear (one is tempted
to say "rarely clear") when a patent is being infringed or not, which
is why so many cases end up in court, when both sides feel strongly
that *they* are in the right]
"S&S Truck Parts responds to Dana Corporation Lawsuit
To Our Valued Distributors: As many of you are aware Dana Corp. and
its subsidiary, Torque-Traction Technology, Inc., have filed a lawsuit
against our company for patent and trademark infringement. S&S goes to
great lengths to ensure that neither its products nor its business
practices violate any valid patents or trademarks. We also go to great
lengths to promote the quality of our brand of replacement parts sold
under our NewStar label. S&S does not and will not misrepresent its
products as being anything other than genuine S&S and/or NewStar
replacement parts..."
==========
http://www.grantthornton.com/downloads/elert_04-02_92007.pdf
Intellectual Property: What your company doesn't know
[This is a good and very current overview of the main aspects of IP as
they pertain to product protections and competition]
==========
http://www.usfca.edu/ipla/rolex.htm
Rolex Watch, U.S.A., Inc. v. Michel Co., 179 F.3d 704 (9th Cir. 1999)
[a key case that deals with replacement parts, and when it's OK to
provide replacements, and when the replacements ca cause consumer
confusion and should not be permitted under IP protections]
Rolex Watch, U.S.A., Inc. ("Rolex") filed suit against Michel Mottale
("Mottale"), doing business as Michel Co., alleging that Mottale
significantly modified Rolex watches with generic parts so as to
result in a different product. Mottale is in the business of selling
altered watches at wholesale and to jewelry retailers and dealers;
these altered watches include Rolex watches that have been
"reconditioned" or "customized" with (1) non-Rolex parts; (2) used
Rolex replacement parts; or (3) generic replacement parts fitting
Rolex watches. Rolex alleged trademark counterfeiting and infringement
under Section 32(1)(a) of the Lanham Act, 15 U.S.C. Section
1114(1)(a); use of false designations of origin and false description
under Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a);
trademark dilution under the Federal Trademark Dilution Act, 15 U.S.C.
Sections 1125(c) and 1127; trademark dilution under California
Business & Professions Code Section 14330; and unfair competition
under Cal. Bus. & Prof. Code Section 17203...
==========
Lastly, I should note that I checked legal databases for any IP
infringement cases involving Oral-B toothbrushes, and did not find
any.
Again, I hope this answer contains all you were looking for, and then some.
But before rating the answer, please let me know if you need anything
else. Just post a Request for Clarification, and I'm at your service.
Cheers.
pafalafa-ga
search strategy: Google searches on:
[ infringement "replacement parts" ]
[ oral-b infringement ] |
