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

5/28/10Follow @bvbigelow

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the patent office yesterday and they have approved numerous other claims that make our patents even stronger.”

So I check back with Cabrera, and he says, “Basically, every claim [Lochtefeld] challenged was rejected by the USPTO. He amended his claims and some of those amendments were allowed. So his patents are going to issue, just without any of the claims he claimed AWM was infringing. He’ll likely try to argue that the new claims are infringed, but the problem is that would only start from when the new amended patent is issued—in which case nothing AWM has done to date would be infringing. And it is our belief that the new claims are also subject to challenge and are not being infringed… this ruling puts AWM on track to dismissal of the claims.”

An hour or two later, I get a call from W. David Osborne, who is the general counsel for Wave Loch, and he says that Lochtefeld called him from London too, and he’s sending me a press release titled, “Wave Loch Must Once Again Set the Record Straight Regarding American Wave Machines’ Misrepresentations.”

In its statement, Wave Loch says, “neither the litigation nor the USPTO process is complete” and as a result of the patent review, “Wave Loch now expects the patents asserted against AWM to emerge from the reexamination process even stronger and to be able to add more claims against AWM… AWM, however, continues to attempt to sell the SurfStream, and by doing so, continues to place itself and its customers at risk of being subject to injunctive relief and significant monetary damages.”

A lot of shoobies and other right coasters seem to think that California surfers are easy-going, like Jeff Spicoli in “Fast Times at Ridgemont High” or the sea turtles in “Finding Nemo.” But if you start messing with their waves—dude!—they can go aggro in a heartbeat! And so San Diego’s wave war continues—-the arguments pounding, pounding, pounding.

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.