Malibu wins patent suit against GSA

[talltigeguy]

Malibu patented 'delayed convergence', so that is why they are winning all of these. Anything that creates delayed convergence loses in court. Plain trim tabs don't do that, they just create leaning and were in use long before the concept of delayed convergence came about. So regular trim tabs seem to be safe.

Nautique patented the wakeboard tower. Unfortunately, their patent lawyer was not as good as Malibu's and they specified that the tower was located at 4 points in the boat. That is why the rage was then to go with towers that only attach to the boat with 2 points. Nautique didn't dream that you could actually build a tower with just 2 contact points on the boat and have it be anywhere near stable enough. I think we would still be running 4 point towers if Nautique hadn't done that.

[BurnMac42]

Well...chalk it up as another reason not to own a Malibu......petty I know but I hate broad sweeping stuff like this. Had nothing to do with Malibu protecting their ingenuity it was just lawyers looking to increase share prices.... I think this is going to stifle innovation in the sport because nobody will push for new tech in fear of Malibu suing them unless someone can come up with a design that does not utilize delayed convergence (any fluid dynamic engineers on here?)

[Dandy]

Patents are only useful if you can afford to enforce them. They can't be enforced effectively for overseas competition anyway so in my eyes they are about useless for small business except if you have something that's really going to make you money quickly.

IMO what this does is make it so that big corporations like Malibu can stifle competition because no one else can really afford the cost of a lawsuit (or more likely multiple lawsuits at the same time)

^^^This. Our family owns a business that manufacturers a product for a very niche market. Most of the market has respected our patents, probably more as an industry courtesy than anything. However there is one other small business that used to sell out product and then started only purchasing our branded parts and building his own stuff to look like ours. We immediately stopped doing business with him and he is making his own. Fortunately, he only sells about 25 a year vs our 600-700 annually.

Our patent agent used to work for the USPTO and was also a patent writer for a large consumer electronics company. Here is what he stated about patent lawsuits:

• You are responsible for all of your own court costs until a decision is made (understandable)
• You have an option to present the other party with a cease and desist notice - but they are not obligated to stop production/sales until determined by courts
• If you win, the looser is responsible for your court costs and 3X any profits lost
• He stated to expect to spend +/- $100K on attorney fees to get through court
• Most often, companies cannot afford to pay your attorney fees and profit lost fees and will just file bankruptcy.

We did start the process of going after the guy duplicating our systems. I had $15K in fees just to have our attorney research weather or not he was actually infringing on our patent. It was challenging as he didn't advertise or have any documentation on his system. We decided that enough was spent.

Unless I have an idea that can be sold in very high volumes to the general public, I will never spend the money on a patent again. Also, most people don't know that you have to pay annual patent "maintenance fees" Ours started around $200/year per patent early on and have increased to over $2000/year. As the patent gets older, the fees go up. So, if you want to make and market something that is patent, check to see if it is active. We have found a couple of patented items that we have produced something similar but different (which would have probably infringed) but they did not pay their maintenance fees which then invalidates their ability to protect the patent.

[Zackdogg]

Hopefully this doesn’t mean that I won’t be able to get a set of GSA plates!!


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[KoolAid]

Its their wording in the patent. I think MC had one before bu but bu's said "delayed convergence" which is why the boat makes a surf wave. You are delaying the exiting water on one side of the boat.

Yes CC has a patent on the towers. I want to say they or MC have the patent on having the anchor light on top of the pylon section of the tower.

[BrentP]

So Koolaid, the E series towers are licensed then so they don’t infringe? I guess that’s on the vendor who made them to do right?


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[KoolAid]

So Koolaid, the E series towers are licensed then so they don’t infringe? I guess that’s on the vendor who made them to do right?


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That was an interesting time. Bear with me as it has been many moons ago. The fee was a percentage of the "tower cost" to the boat MFG. When the E series and Z series were out we built them in house. Ordered billet parts, had tube benders and a staff that built them full time in house. So our tower price was based on the materials cost since we built them. They couldn't charge us a percentage of our labor. Needless to say we didn't give them very much $$ during that time. Just another work around that most companies find, such as the two point tower talltigeguy brought up.

I want to say the fee was on the vendor who made it based on the selling price of the tower.

[BrentP]

Interesting man. Such a complicated thing - and these boats have SO many parts in them covered by so many different vendors and technology creators... Crazy - but this is an interesting work around. I'll go look on my E-Series for your signature - "Hand Created by KoolAid. Oooohhhh Yahhhhhhhhh"

[cnote]

Hopefully this doesn’t mean that I won’t be able to get a set of GSA plates!!


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you can, but they'll cost a lot more

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[IDBoating]

Malibu patented 'delayed convergence', so that is why they are winning all of these.

I must politely disagree. Malibu is winning these because 1) the Patent Office made a couple of specific mistakes during examination of their original SurfGate patent, 2) Malibu has realized that mistake and is exploiting it, 3) Malibu has more money to pursue this than most companies, and 4) most other defendents have stupid patent attorneys. And I mean really, really stupid.

This seriously ticks me off. I'm all for innovation and have many patents where I'm listed as the sole or primary inventor, but I'm offended by people abusing the system.

Need evidence? Let's start with US Patent 3,200,782 issued in 1965 (!!!) to Walden. Click here to access a PDF version. Walden describes (and illustrates!) "delayed convergence" over FORTY YEARS before Malibu filed their original SurfGate patent. Walden also describes and illustrates vertically mounted and hinged tabs. Because of this prior art all by itself, Malibu should never have been issued their claims and should not be able to enforce them against others.

However, the Patent Examiner made a mistake during examination and allowed some claim language that confuses the issue. To their credit, Malibu wasn't seeking this language - they were basically walked into it by the Examiner. But once they had it, someone realized that it confuses things. And ambiguous language combined with lots of money can make bad things happen in a courtroom.

I could go on and on about this. Literally for hours. But suffice it to say that "delayed convergence" is in the public domain. Malibu did not create the idea of attaching hinged tabs vertically to control convergence. The only reason this is still going on is because of some unbelievably boneheaded decisions by attorneys for Mastercraft and Nautique, who were the first two victims of Malibu's legal assault.

Grrrrrr.

[scottspray]

GSA does seem much different than Surf Gate. It isn’t a tab or brake. It is more like a diverter. It does more than a tab, but it doesn’t brake one side to make the boat crab.
GSA may be closer to Malibu’s Wedge

[IDBoating]

According to Malibu's patent specification, which is a sworn statement and is legally required to properly describe how their invention works, SurfGate works by diverting water. They are abundantly and crystal clear about this. They do NOT "crab" the hull, indeed their patents make zero statements about crabbing the hull and the word "yaw" never appears. To have left out an important detail about how their invention works is to commit fraud against the Patent Office, which is a department of the federal government. Not only would doing so invalidate their patents, it would also be criminally actionable.

We believe Malibu and take their sworn description as being totally accurate because the law requires it to be so. Therefore, SurfGate works by "diverting water" using vertically hinged tabs. This happens to be exactly what the Walden patent covered back in 1965, but that's a different argument for a different day. The point of THIS discussion is that SurfGate does not depend upon the hull to do anything whatsoever... it works solely and entirely by diverting water using their so-called "water diverters".

Any system which does not work by diverting water to the side of the hull DOES NOT VIOLATE MALIBU'S PATENT. The fact that companies have capitulated and are now paying money does NOT mean they are infringing, only that they deem it a better business choice to pay their fees than to beat them in court.

And there's a key, fundamental detail that most people miss: Malibu has never defended their SurfGate patents in an actual courtroom. Their victims have always tipped over before any judge or jury has rendered an actual decision on the question. CC and MC filed ex parte challenges to their patents with the Patent Office, but 1) that's not the same as an actual infringement case in a federal court, and 2) they both did stupidly terrible jobs of it.

All of this, and MUCH more, is going to surface in an actual court case which is coming up in the next few months. Only then, when Malibu has been forced to defend their patents in an actual court of law, will we know whether their SurfGate patents survive. I can tell you that the evidence is NOT on their side, starting with Walden that goes back over four decades and continuing with their own words and illustrations in their own patent filings. Add to that some contemporaneously gathered data from surf boats which predate SurfGate and I wouldn't be investing in Malibu stock just now.

[chpthril]

They do NOT "crab" the hull, indeed their patents make zero statements about crabbing the hull

Guess the legal team never drove one when you switched sides

[IDBoating]

Guess the legal team never drove one when you switched sides

The disclosure comes from the Inventor(s), who are deemed to thoroughly understand their invention and required to describe it completely. Since we presume Malibu did not commit fraud on the Patent Office, we can trust that Malibu did indeed completely describe how their invention works - and therefore it works by "diverting water" (their words) at the surface. Just like Walden did 40+ years ago, by the way.

Any system which operates in a manner DIFFERENT from "diverting water" at the surface, by Malibu's own words and figures, does NOT infringe.

Do not buy into the falsehood that "Malibu owns surf technology". That is obviously not true since their patents start in 2012 and people were surfing behind wakeboats long before that (there were even formal contests at wakeboarding events). Do not help Malibu by spreading that falsehood... instead, help the community by spreading the TRUTH. Malibu has patents on one particular way to create/enhance a surf wave behind a wakeboat. Period. There are many other ways to create and enhance a surf wave behind a wakeboat and unless those ways involve a vertically hinged plate which pivots to the side of the transom, it is not covered by the SurfGate patents. All you have to do is read their patents and look at their figures to realize this. That some companies have tipped over simply means they made a certain business decision... it does NOT mean that Malibu's claims to "own surf technology" are true. The one and only way to know that is a formal decision from a judge or jury and that has not happened. Yet!

When it does, the "love offerings" being paid by some companies are likely to stop. Malibu is taking an extreme risk going to actual court. When the truth comes out, they risk not just losing that one case - they risk losing all of their existing revenue streams from this patent portfolio. There's no need to pay royalties for patents that are suddenly gutted by a federal court. I suspect Malibu will look back and realize they took one step too far.

[KoolAid]

This makes my day seeing ID's view of all of this. Makes total sense. Thank you for responding to us the way you did. I know for me, it clears up a lot of things.