Wave vs. Wave: Breaking News in San Diego’s War Between the Surf Machines

5/28/10Follow @bvbigelow

Stand on any beach on any ocean, and one of the things you will eventually notice about waves is that they keep coming—which might turn out to be the case with legal disputes over wave-making technology as well.

It certainly seemed that way last year, when I wrote about a startup in Solana Beach, CA, called American Wave Machines, or AWM. Founder Bruce McFarland and his wife Marie started the company in 2000 to develop his ideas for SurfStream, a machine capable of generating a standing surfstream-logowave big enough for paying customers to surf. But AWM’s hopes for a glassy ride to the green room got pitched in the soup in 2008, when San Diego’s “wave war” began.

McFarland’s former boss, Tom Lochtefeld, filed a patent infringement suit, alleging that AWM’s technology was infringing on patents that Wave Loch logoLochtefeld and his company, San Diego-based Wave Loch, have been commercializing since 1991. Lochtefeld was all amp’d about McFarland dropping in on his wave—or what he said was his wave. It was like a field day at the courthouse for all the men in the gray suits. AWM denied Lochtefeld’s allegations, and asked a federal judge in San Diego to suspend the litigation until the patent office has conducted an official review of the claims asserted by Lochtefeld and Wave Loch.

So it seemed like victory at sea for AWM when I got a press release this week (from AWM) that says the U.S. Patent and Trademark Office (USPTO) “has invalidated each of the 27 patent claims asserted by Wave Loch in its patent infringement claim against American Wave Machines.”

In an e-mail, the lawyer for AWM, Gil Cabrera, says, “Once the USPTO issues the Reexamination Certificate consistent with its final rejection of Lochtefeld’s claims, we will file a motion to dismiss the entire case because none of the claims he asserted against AWM survived reexamination.”

Cabrera says the patent office ruling puts AWM in a “great position to ultimately prevail in the litigation.” But when I asked Lochtefeld for his response, he was like, Whoa. Wait a minute Ho-dad. He tells me by e-mail: “Bruce. Your information is false.” Then he calls me—from London—to say, “There are still patent claims outstanding. I met with … Next Page »

Bruce V. Bigelow is the editor of Xconomy San Diego. You can e-mail him at bbigelow@xconomy.com or call (619) 669-8788 Follow @bvbigelow

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  • b_e

    I may be a little naive in the Business scene, but I know my surf lingo, Mr. Bigelow. Lochtfield was probably not “amp’d” about seeing his patents infringed, “aggro” is probably more appropriate here than the other location you used it. And “victory at sea” is a collection of jumbled, uneven breaks in high wind that are frustrating to surf on. I doubt that’s the situation AWM found itself in after the USPTO ruling. Its antonym “glass” might be a better word.

    Maybe I’m being a little hard on you, but what good is a surf-themed article without some bashing from the locals?

  • http://www.xconomy.com/author/bbigelow/ Bruce V. Bigelow

    Hey b_e thanks for reading! I admit I’m just a grommet—or, wait, maybe I’m a n00b—but FWIW, I get all my surf lingo from the Riptionary.

  • Marc Moore

    I thought it was funny and enlightening.

    Way to go Bruce.

  • ssna rae

    Dude – you are totally dialed in.

  • http://www.surfstream.com Bruce McFarland

    I’d like to clear up some concerning inaccuracies in this article. We also encourage the reporter, Bruce Bigelow, to write a follow up article and include me as an interview subject so that he can get the whole story and the straight-up facts.

    We at AWM are pleased with the USPTO ruling invalidating every Wave Loch claim made against us.

    USPTO’s examiners had a very different take on the follow-up interview that Mr. Lochtefeld references in Mr. Bigelow’s article, and notes from this interview are available on the USPTO’s website. These notes confirm that WaveLoch’s proposed amendments are untimely because they were submitted after the USPTO made its rejection of all asserted claims final. In fact, the USPTO explicitly stated that it may not enter the proposed amendments because of the untimeliness. To date, the USPTO has taken absolutely no action to retract, or otherwise undermine, the final rejection of each and every one of the 27 claims asserted by WaveLoch.

    Mr. Bigelow’s article uses terms like “war” and infers that AWM and its customers are “at risk”. Each is equally false. Our products do not infringe WaveLoch’s patents and could not infringe them because it is legally impossible to infringe an invalid patent. Therefore, given the recent success with the USPTO, AWM continues to believe that WaveLoch cannot threaten our customers and associates that manufacture, sell, or use AWM products.

    Furthermore, the article refers to Mr. Lochtefeld as my “boss”. This is false. I was an owner of Wave Loch Tool & Die, LLC and therefore a partner of Mr. Lochtefeld..

    Bruce McFarland
    Owner, American Wave Machines

  • http://www.xconomy.com/author/bbigelow/ Bruce V. Bigelow

    Hey Bruce, thanks for providing your comments in this forum. I can certainly understand why these points are important to you, and I’m glad to follow up when the smoke clears at the patent office.