Argentium patent and patent application

Jewelry Discussion
1

Hi all,

Like so many others, I’ve been experimenting with argentium sterling
silver, and I’m impressed with the way it works and with the tarnish
resistance. However, I’m confused by the existing U.S. patent
6,168,071 issued to Peter Johns and by the current U.S. patent
application 007000937, also submitted by Peter Johns. I’d like to
know what other Orchidians think about my concerns.

Regarding the patent:

The '071 patent is titled: “Method for joining materials together by
a diffusion process using silver/germanium alloys and a
silver/germanium alloy for use in the method”.

The process, as described in the patent, could be the process that,
on Orchid, has been referred to many times over the years as
"fusing". I question the novelty of such a process.

On the other hand, the process is said to take place at a
temperature below the solidus temperature of either of the pieces
being joined. My understanding is that the process at such
temperatures is not one of diffusion, rather it is sintering. There
is little or no diffusion involved in sintering. The former is
atomic or molecular migration from higher concentration to lower
concentration; whereas, the latter is either surface migration in
the solid state, or it is surface evaporation/condenstion, from
regions of high radius of curvature to regions of low radius of
curvature. (I would expect surface migration to be the dominate
mechanism for a silver alloy, because it has a low vapor pressure.)
Sintering is not a new process, either.

The possible implications of this patent have me in a quandry.

Regarding the patent application:

This application pertains to the compositions of the alloys. It
apparently has received much critical evaluation from USPTO, since
the first 19 claims have been rejected. Of the remaining claims, I
was surprised by the possible implication of the claim that any item
fabricated using any of the specified alloy compositions, without
license approval from the assignee of the proposed patent (whom, I
presume, is Mr. Johns since he is the assignee for the '071 patent),
would be an infringement. I wonder how many people are aware of the
possible consequences of this claim if it survives examination by
USPTO.

John Palmer
Mackinac Designs

2

John,

Judging from the wording of your post I’d guess that you’re no
novice when it comes to reading patents. In that case I’m a little
puzzled that you’d interpret the Argentium Silver (AS) patents to
mean that Peter Johns is going to sue someone if they fuse the metal.

As I understand it one describes the unique properties of one’s
invention in order to establish it’s legitimacy as a new and
patentable process or material. Between that and whatever one calls
the “fair use” principle when it comes to using commercial products
that are based on applicable patents I respectfully suggest that
you’re worrying aloud for no good reason.

For instance, a Bic lighter will (usually) make fire when you flick
the little lever and I’ll bet you there’s a patent out there
somewhere that says so. But no one seriously thinks that they’re
going to get sued for flicking their Bic? Same deal with AS, I’m
suRe: once you’ve purchased AS from a licensed AS dealer you’re free
to use all of it’s wonderful properties and call the finished
product Argentium Silver. Whether you can use the official Argentium
logo or whatever I think that’s when you start getting into licensing
issues.

As to the rejection of patent applications that’s something I am a
little familiar with. My father once filed a patent for a machine to
be used in the extraction of flour gold from river sediment: I don’t
know how many times he got rejection notes from the patent office and
had to revise the paperwork accordingly. It’s my understanding that
that’s just the patent people doing their job, making sure the
wording is right, that the relevant details are there, superfluous
material is removed and so forth: you keep doing it until you get it
right. In other words, that’s business as usual when it comes to
patents.

I’m not certain of the details but I’m pretty sure that the
Argentium people have filed many patents for the various AS alloys
and their processes.

Cheers,
Trevor F.in The City of Light
Visit TouchMetal.com at http://www.touchmetal.com

3

Trevor,

Thanks for your thoughts. I admire the work that must have gone into
developing the Argentium alloys and the passivation treatments, and
one expects the results of that work to be protected by patents.
Hopefully, you are correct in thinking that the argentium patent
(and pending applications) are not formidable obstacles to jewelry
makers who work with Argentium sterling silver.

Although I work mostly in gold, I see that Argentium also is a very
attractive and practical medium. But I don’t want to committ
significant money and time to developing methods and styles that
would infringe on anyones intellectual property. This is why I
decided to check out the US Patent Office items pertaining to
Argentium alloys.

As you surmised, I have experience with patents; in addition to
metal working, I’ve been a contract designer/inventor most of my
life.

The claims of the existing patent (6,168,071) cover (1st) a method
for joining metal parts (at least one of which consists of an
Argentium alloy) and (2nd) the alloys themselves. I assume that
assembly of pieces using this method, and offering those pieces for
sale, is an infringement of the patent. If you receive an
infringement notice, the consequences are serious business.

Actually, I wonder if anyone in jewelry fabrication does join metal
parts at temperatures below the solidus temperature. It is a
relatively slow process.

The pending US patent application ( 20070009375) is the one that
interests me the most. Claim 25 states that: A finished or
semi-finished shaped article of the alloy of claim 20 (the claim
that specifies alloy composition) is covered by the patent (if
issued). I assume that this interprets as ANY such article. As you
mention, things change frequently as the patent application is
critiqued by the USPTO examiner.

The stated mission of the USPTO is to (1) protect the investments of
the assignee of the patent, and (2) to inform the public in order to
stimulate continuing technical and artistic development. It is good
that the pending applications are made available publicly so that
potential users can see and discuss what is in the pipeline.

Regards,

John Palmer
Mackinac Designs

4 
Actually, I wonder if anyone in jewelry fabrication does join metal
parts at temperatures below the solidus temperature. It is a
relatively slow process.

This is how diffusion bonded mokume gane is made and gold fill for
that matter. I read his patent the same way, he claims the process
of diffusion bonding using his alloys as a protected process. So if
that is a correct reading anyone who is making mokume using
Argentium without a license from him is in violation of that
particular patent.

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

5

Would some one who knows more than me please intervene with the
patent office on this? We don’t need another patent granted that
keeps us from doing what we have done before. Or does any one
remember the twisted cable debacle?

Judy Hoch

6

I also am concerned about this as I have moved completely over to
Argentium. I would strongly consider stop using Argentium if they
gain a patent over a process that historically belongs to all of us.
Perhaps others feel this way too and the inventor might want to
reconsider!

How can we register an objection?

Margaret Frison

7

I have to say that this whole topic has me a little baffled.
Personally I have a tough time seeing what the problem is here but
maybe that’s just me. Ok, so let’s look at the progression of this
topic:

John Palmer wrote:

Hopefully, you are correct in thinking that the argentium patent
(and pending applications) are not formidable obstacles to jewelry
makers who work with Argentium sterling silver.

James Binnion wrote:

I read his patent the same way, he claims the process of diffusion
bonding using his alloys as a protected process. So if that is a
correct reading anyone who is making mokume using Argentium without
a license from him is in violation of that particular patent.

Judy Hoch wrote:

Would some one who knows more than me please intervene with the
patent office on this? We don't need another patent granted that
keeps us from doing what we have done before.

It would appear that the concern is that there is something unusual
and potentially threatening in the wording of the Argentium Silver
(AS) patents. I’ve done a little informal research myself on this and
I’d say we’re making mountains out of molehills here.

First question first: is there something unusual about the wording
and/or claims made in the Argentium Silver (AS) patents? I’m going
to look at a more or less random sample of other precious metal alloy
patents to see how they compare. If they contain similar clauses and
wording they we can probably conclude that the concerns being raised
here are unfounded, or at the very least they apply to precious
metal alloy patents in general and not Argentium Silver specifically.

In US patent 7118707 (inventor Marc Robinson of ABI, Silver-Platinum
alloy aka “claim 1”) the patent says:

"What is claimed is…

  1. A jewelry item comprising the alloy composition of claim 1, said
    jewelry item is selected from the group consisting of bracelet,
    ring, necklace, brooch, cuff links, pin, and watch.

  2. A flatware item comprising the alloy composition of claim 1, said
    flatware item is selected from the group consisting of knife, fork,
    spoon, tray, pitcher and plate.

  3. The alloy of claim 1 is formed into a configuration selected from
    the group consisting of grains, sheets, and tubes."

So, if we were to apply the line of thought being pursued by John,
James and Judy we’d conclude that all jewlery, flatware and stock in
the Silver-Platinum alloy is subject to patent violation claims by
Marc Robinson and ABI.

In US patent 6139652 (inventor: Richard Carrano, Stern Leach) under
the title “Tarnish-resistant hardenable fine silver alloys”
(obviously of a specific composition) the patent says:

"What is claimed is:…

  1. The silver alloy… formed into an ornamental object."

Again, one could conclude that we’d best not make an “ornamental
object” out of that alloy because we might get sued.

A brief tour through a variety of other US alloy patents (see
http://patft.uspto.gov) yields many similar “what is claimed”
scenarios.

And at this point I felt that I had to honest with myself: I’m
reading legal documents and drawing conclusions based on… complete
ignorance!

Any lawyer, patent lawyer or otherwise, will tell you for free (!)
that Joe and Jane Average – I’m one such Joe – are simply not
qualified to do this, and on this rare occasion they are (probably)
telling the truth.

So, how is it that everyone should now feel qualified to read and/or
evaluate alloy patents? I’m know I’m not. John, James, Judy, are
you?

With a few rare exceptions I’d venture to say that Orchid members in
general are not… so why are we pretending to be thusly qualified
when it comes to the Argentium Silver patents?

Ok, so FWIW, I had a brief discussion with a friend that knows
something of patents what I was told was this:

  • patents are legal documents prepared by patent lawyers for the
    purposes of defending patent claims in a court of law.
    Interpretations of said documents outside of the legal context are
    highly suspect (read: “almost always rubbish”).

  • patents for a particular field generally follow a similar form and
    convention: what you see done in one particular patent will very
    likely appear in many patents of that sort in that field. It’s a
    matter of legal precedent and convention. Very often the patent
    documents are virtually boiler-plated from one application to the
    next.

  • patent claims are generally written to be as broad as possible,
    staking claim to anything you don’t want someone else claiming with
    your invention. If you don’t it someone else will so do it to cover
    yourself and maintain as much control of your invention as possible,
    for legal purposes.

If someone cares to enlist the services of a qualified patent lawyer
and share their professional assessment of the patents in question
with us I’m all ears but until something like that happens we’re all
just guessing and gossiping aren’t we?

Ok, enough of the legal-shmegal stuff. Second question: is there a
threat here to us as makers of jewlery, flatware and ornamental
objects?

Frankly I’m wondering what has happened to people’s common sense.
Does anyone seriously think that someone would invent something,
spend a decade or more getting it into production and then prohibit
people from using it? C’mon guys, does that sound rational to you?
And this obviously doesn’t just apply to AS, it applies to a myriad
of other precious metal alloys because they too claim this, that and
the other thing that we might want to make or do with them.

At some point the paranoia over what might or might not be in the
patents has to give way to a little “I buy metal and I make stuff
with it” rationality. For the inventor to even dream of messing with
us and what we do with their metal would be financial and
professional suicide: one single case of a maker being sued for
making something would kill the alloys marketability stone dead. The
makers would shy away, sales fall, the retailers back away,
production drops and eventually stops and finally it’s just one for
the history books. I seriously doubt that anyone involved with AS has
anything like that in mind as the future they envision for
themselves.

And last but not least, are we alone in this? I don’t think so. If
I’m not mistaken Asian factories are using AS by the ton so why do we
think that the AS guys would want to hassle us for difussing the
metal or whatever in our teensy little shops? Hello! Doesn’t anyone
else get the feeling that we’ve got a much ado about nothing
situation on our hands here?

Cheers,
Trevor F.
in The City of Light
Visit TouchMetal.com at http://www.touchmetal.com

8

Yeah, Trevor! Way to go. I totally agree with you and I don’t even
use Argentium silver. I’m now a hobbyist and not a threat to anyone.
But I think your reasoning is right on target. Just doesn’t make
sense that they would produce an alloy like this and then slap so
many impediments in the way of using it. Glad you jumped in here
became the voice of reason.

Kay

9

Trevor,

Take a moment and go and read the claim on in the patent. It doesn’t
take a lawyer to understand it.

http://tinyurl.com/yoy4xm

It describes the process of diffusion bonding using the claimed
alloy composition. It is not just boiler plate or standard language.
It is the first claim so obviously it is a major part of the patent
It is not legal mumbo jumbo and it is in the exsisting patent so it
is protected. If you make a mokume gane style laminate in the solid
state diffusion process using Argentium without a license from Peter
Johns you are in violation of his patent. Furthermore if Peter Johns
knows you are doing this and doesn’t go after you for violating his
patent the courts can make a decision that he has abandoned his
patent. So even if he doesn’t care he must go after infringing
persons to keep the patent active.

What a patent does is grant you both the right and responsibility to
spend lots of money going after people who infringe on your patent.

I am by no means a patent expert but I do share one (in a different
field 6459989 ) and have spent more than a few hours in exploring
the process of getting one.

James Binnion
@James_Binnion
James Binnion Metal Arts

10

Essentially Trevor is right, the worry over the patent claims is
exaggerated and misplaced. There are two sides of the coin and there
are reasons why they are the way they are as, I hope, will be clear
in a minute. But, also remember, IANAL so if there is any requirement
that YOU need legal advice, please seek it ASAP from qualified legal
counsel.

On the patenting side of the coin there is a principle that says (and
I paraphrase since I don’t have time to dig out the exact language)
"any claim that claims all the elements of an allowed (or in
litigation, valid) claim and then some more elements THAT ARE
NOT/EITHER OR NOVEL NOR NON-OBVIOUS is by definition novel and
non-obvious ANYWAY. In other words if the claim for the metal
formulation stands then so does the claim for that metal formulation
PLUS any other common method of use or thing made of it, etc. Likely
that seems counter-intuitive until…

The other side of the coin is patent enforcement and rights. On this
side (and again I paraphrase) there is a principle that the inventor
is entitled to one and only one bite of the revenues from their
invention, when they’ve gotten their bite they’ve exhausted their
rights to any compensation from activities/sales down the line even
if they ACTUALLY INFRINGE other claims of the patent (even additional
patents!). How does the inventor get that bite? Generally they ain’t
but two ways, make and sell the root claimed metal (in this case) or
license the making and selling of it. Certainly they could “do it
all” and make the metal and make all the jewelry and sell it but
trying to do that they quickly run into human limitations—the net
result of which they would make far less money if they try to do it
all themselves than if they get their (initial little) bite and let
others get their piece of the pie too. Peter is wisely taking the
former course.

So, if you buy your Argentium Silver (AS) from a the patent owner or
licensed source or a seller who has bought from either, etc., (no
matter how long the chain or what the markup in between) then Peter
has gotten his bite, he is entitled to no more regardless of what you
do with that AS. (Of course if you are outside a country where Peter
has patents on AS or methods of its use or finished products from it,
then you are free to make AS yourself or buy it from UNLICENSED
sources outside those countries where there are enforceable patents.)

So why would Peter take the little bite of a small licensing royalty,
say 5% of AS wholesale price (maybe 60 cents an ounce–raw guess), at
the beginning of the chain yet still claim in his patents all the
downstream AS products/processes too if he isn’t going to get a
bigger bite by soaking you for 5% of the final product retail price
(say a lucrative $5 on a $100 retail price jewelry piece or $50 on a
$1000 piece)?

Scenario 1. You, the foolish jeweler, don’t want to pay the extra 60
cents an ounce PLUS whatever his licensee extracts from you for HIS
OWN piece of the pie (if he can’t make more via AS than raw silver
then he won’t even play the game–unless he’s “business” crazy,
which happens). You decide that rather than paying the (wild guess)
$2-$3 extra per ounce you STILL want the AS benefits which have MORE
value to you than plain silver but you would like to pocket that
extra $2-$3 for yourself too. So you make your own AS (after all the
patent explains how one of your skill can do it) and also you make
your $1000 piece. Likely you begin to see where this is going:-). You
sell your $1000 piece, pocket the extra $2-$3 with a smilethen
the cease and desist letter from Peter’s attorney arrives in the mail
asking for you to either quit making and selling what Peter’s patent
rights cover and also to fork over $300 (you’ve not in a position to
negotiate and this is a “one time” charge really) as Peter’s
compensation plus legal fees…

Just one hour of an attorney’s time is going to cost you maybe the
savings on making your own AS for 50-100 ounces or so. Hmmm…, real
smart move, saving the $2-$3. However, being a total idiot—and
ignorant of patent law too—you decide all Peter is entitled to is
the $2-$3 his manufacturer would have gotten from an original AS
sale. You plunk down $2,000 to an attorney who will fight for you
(cash up front, of course), give Peter only his due, no more! Since
you already knew about the patent, and provided you’re willing to
shell out the $30,000 to $50,000 (or more if you or Peter have
“crafty” lawyers) that it takes just to get the case to court, the
judge or jury happily award Peter “willful infringement” treble
damages at the $300 level (the jewelry made from AS claim, not the
root AS metal claim), i.e., $900 on your $1000 piece—and the judge
caps that with full legal costs too—a mere $700,000 for Peter’s
hard working attorneys (documented billable hours! at LITIGATION
rates!!)

Scenario 2. You the crafty jeweler, buy from or make your AS outside
countries where Peter has a patent then, since where he has patents
is really where the market is, you import it into (or export it to) a
country where there is a patent. (The right to stop AS crossing the
border into a country where Peter has an enforceable patent is one of
his patent rights.) Let’s guess, which is Peter going to want to sue
you (or the importer/fabricator/seller) for in his infringement suit,
the 60 cents per ounce of AS or some reasonable compensation on the
finished piece value as his patent claim entitles him to?

This patent game has been worked out in the courts and the
legislatures for over 5 centuries. I strongly urge you not to try to
play it with some half baked, ill-informed, personal “invention” of
what patent law is.

James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

11

James,

Did you go and read the abstract or look at the claims? The title is
“Method for joining materials together by a diffusion process using
silver/germanium alloys and a silver/germanium alloy for use in the
method” The claims concern both the method and the alloy. Are you
saying that he can’t protect the method claim just because he
protects the alloy? Most alloy patents are just that a claim for the
rights to a range of constituent elements not for the method of
their use as well.

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

12

Dont get me wrong I think Peter deserves all he can get from the
invention of the alloy. I doubt it will fully repay all the work and
hassle of getting the patent and finding a manufacturer to license
it and getting it to market. The small number of patents that
actually get to market don’t usually pay off big for the inventor.

My comments were not to frighten the list members it simply about
the invention he has claimed, he has a patent on the method of
joining as well as the alloy composition. This is not the same as
saying that he has a patent on an alloy that can be used to make
jewelry or other objects by casting, fabricating, stamping or other
methods. I seriously doubt he will be coming after the small jeweler
as there is no money in it but if you were to set up a manufacturing
business using diffusion bonding of AS I bet you would be hearing
from his lawyers.

If you want to continue the discussion please read at least the
abstract and claims on the patent then we can talk about what they
say.

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

13 
Most alloy patents are just that a claim for the rights to a range
of constituent elements not for the method of their use as well.

Not at all true, as I clearly indicated in my post a couple of days
ago.

Alloy patent holders will often go so far as to claim what is made
from the alloy (“ornamental objects” et al), which I think anyone
would interpret as superseding how you made the thing.

I seriously wonder what you guys are on about. As we’ve seen alloy
patents cover the map in terms of what they claim and how they claim
it. We’ve already seen good reasons why it’s a fool’s game for people
who know little or nothing about the legalities of patents – myself
included – to assume they do and start making judgments on whether
this or that patent meets their approval. And there’s no good reason
on this earth to assume that the AS patent holder(s) have any
interest in what we artisans are doing with it or intend to keep us
from doing it.

Basically few people in this discussion actually know what they’re
talking about when it comes to these patent documents and they’re
doing so in heavy, doom-laden voices. Where’s the beef?

... but if you were to set up a manufacturing business using
diffusion bonding of AS I bet you would be hearing from his
lawyers.

If you were such a manufacturer and you did as you described and you
stamped your stuff with the AS logo and you called it “Argentium
Silver” and you were doing so in great volume I do think the lawyers
might be calling you to ask if you’ve got a license from ASCo
(Argentium Silver Company) to do so. Their licensing agreements
specifically target large-volume users and specifically does not cite
the small timers like most all of us.

I think the situation is much more like this: if any of us buys
Argentium Silver from a licensed manufacturer and/or dealer I’ll bet
you’re free to do whatever you want with it. Of course it’s best if
we follow the recommended procedures and so forth but really, who’s
going to know or care? If we start shipping $100,000 plus a year of
AS product then yes, maybe it’s time to talk to the ASCo people about
full licensing per their licensing agreements. And the problem is?

Cheers,
Trevor F.
in The City of Light
Visit TouchMetal.com at http://www.touchmetal.com

14

Hi James,

method" The claims concern both the method and the alloy. Are you
saying that he can't protect the method claim just because he
protects the alloy?

Reread my post very carefully then, if you still can’t answer your
question, pose a very specific scenario making sure all the needed
details are present and pick one specific claim and I’ll give you my
analysis.

Keep in mind that the title and the abstract of a patent will NOT be
entertained by the courts for understanding the claims absent a real
fight to have them considered—I think all such fights so far have
been lost but I may be wrong. Also keep in mind that ONLY claims,
nothing else, in a patent can be infringed.

James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

15

Most alloy patents are just that a claim for the rights to a range
of constituent elements not for the method of their use as well.

Not at all true, as I clearly indicated in my post a couple of
days ago. Alloy patent holders will often go so far as to claim
_what_ is made from the alloy ("ornamental objects" et al), which I
think anyone would interpret as superseding _how_ you made the
thing.

The patents you are referring to claim the type of use for the
invention. This patent claims the joining method itself, a big
difference.

Of the 21 claims in the patent 14 are for the method of joining and
only 7 are for the alloy. The first 8 claims are for the method of
bonding then comes 2 alloy claims then another 7 method claims and
the final 5 are alloy claims. Obviously the method of joining is a
primary focus of the patent.

In claim 1 he clearly is claiming the method of diffusion bonding AS

1. A method for joining two elements using a silver based alloy
having a germanium content, comprising:providing two elements to
be joined together, at least one of the elements comprising a
silver/ copper/germanium alloy having a silver content of at
least 77% by weight, a germanium content of between 0.4 and 7% by
weight, the remainder principally being copper apart from any
impurities, which alloy contains elemental boron as a grain
refiner at a concentration of greater than 0 parts per million
and less than 20 parts per million; placing the two elements
adjacent one another such that a portion of a free surface of the
silver/copper/ germanium alloy contacts a portion of a free
surface of the other element without interposing a filler
material between the two free surfaces; and heating the two free
surfaces where the two elements are adjacent one another to a
temperature below that of the solidus temperature of any one of
the constituent materials of the elements, thereby joining the
two elements by a diffusion process.

In claim 7 he is clearly claiming a mokume gane type process.

7. A method according to claim 1, wherein a plurality of
superimposed elements are joined together to create a
multi-layered product.

So even if you buy your silver germanium alloy from ASCo or one of
their licensees unless they specifically grant you permission to use
it in diffusion bonding process you are infringing on the patent.
Now they may grant this license to the purchasers of AS from a
licensed manufacturer but I have not received any such information
when I purchase AS nor do any of the resellers post or otherwise
convey this that I have seen.

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

16 
Reread my post very carefully then, if you still can't answer your
question, pose a very specific scenario making sure all the needed
details are present and pick one specific claim and I'll give you
my analysis.

Assume that one were to manufacture a piece of jewelry using the
method of diffusion bonding as described in claim 1. The jewelry was
composed of alternating layers of Argentium silver the patented
alloy and copper from claim 9. Assume that the Argentium was
purchased from a licensed manufacturer of that alloy.

I do not believe that purchasing the alloy from a licensed producer
automatically grants me the right to manufacturer a product using
the method claimed in claim 1. Are you saying that it does?

1. A method for joining two elements using a silver based alloy
having a germanium content, comprising: providing two elements to
be joined together, at least one of the elements comprising a
silver/copper/germanium alloy having a silver content of at least
77% by weight, a germanium content of between 0.4 and 7% by
weight, the remainder principally being copper apart from any
impurities, which alloy contains elemental boron as a grain
refiner at a concentration of greater than 0 parts per million
and less than 20 parts per million;placing the two elements
adjacent one another such that a portion of a free surface of
the silver/copper/ germanium alloy contacts a portion of a free
surface of the other element without interposing a filler
material between the two free surfaces; and heating the two free
surfaces where the two elements are adjacent one another to a
temperature below that of the solidus temperature of any one of
the constituent materials of the elements, thereby joining the
two elements by a diffusion process. 9. A silver/germanium alloy
having a silver content of at least 77% by weight, a germanium
content of between 0.5 and 3% by weight, the remainder being
copper apart from any impurities, which alloy contains boron as
a grain refiner at a concentration of greater than 0 parts per
million and less than about 20 parts per million.

James Binnion
@James_Binnion
James Binnion Metal Arts

360-756-6550

17

Mr. White

What you wrote is interesting and sounds vaguely familiar. However,
prior art and prior inventive processes are different than novel and
obvious. I learned this just recently when my Patent Attorney
withdrew several of my claims on a recent patent application. I also
had the misfortune of hearing this in the Federal Court of Appeals as
I listened to an immensely boring Patent dispute over some genetic
engineering something or other (I was waiting for an appeal on an
unrelated contract dispute). The only part I really understood was
the part where the Appellate Judges thought several claims should be
held invalid (the prior art thing). The appeal didn’t specifically
address the issue itself, but rather whether the lower court had
acted properly in upholding the patent. Maybe, my understanding was
incorrect as I never followed the ruling. My contract lawyer told me
the the judges usually hate patent law because outside the patent
system, almost know one fully understands it (She should know since
she clerked for a Supreme Court Justice prior to her private
practice).

As for my dispute, we won our appeal and were awarded litigation
expenses from the beginning of the legal process. This turned out to
be almost twice the cost of the actual dispute. We appealed because,
sometimes you find yourself in so deep that what’s another small
fortune once you’ve already lost a couple. Thankfully we recouped the
losses. I am told that most appeals don’t prevail.

Anyway, this isn’t jewelry related so I’ll not post anymore. Just
thought I’d respond since I wrote the last response before I saw
yours. That’s what I get for jumping the gun. I should have waited
since just about every post I’ve read on the forum has been answered
far better than I could have.

Larry Feller

18

This discussion of the Argentium Silver patent is very interesting. I
am new to the jewelry industry, but I do have a bit of experience
with inventing and patents.

In my experience, James Binnion is correct in his reading of the
claim. Additionally, patent attorneys notwithstanding, claims are
essentially indefensible if the patent, including its claims can’t be
understood by those experienced in the field of the patent. It is
true that court precedents control most of the specific language used
in the claims, but this only ensures there is no ambiguity in the
interpretation. The claims still must be understandable to those
experienced in the field of the invention. As far as arcane language,
early Modern English, Middle English and Old English, are arcane. If
you are familiar with them, you know that they are like reading a
foreign language. I only speak English and yet I understand both
Spanish and Italian much better than Middle English and about the
same as early Modern English.

As for the patent itself, is metal alloy and more specifically,
silver alloy diffusion bonding specific to Argentium Silver? If you
all have been using the same methods to bond silver alloys prior to
Peter Gammon Johns invention, then you are either not using the
specific method he invented, or those claims in his patent, are
likely not enforceable. Based upon what I have seen posted here, I
suspect Mr. Johns may only find claims 8, 9, and 17 - 21 to be valid
if the patent is challenged.

In the mean time, manufacture, distribution and sale of the product
directly to those principally involved in the fabrication of jewelry
could be argued as an acknowledgment of a limited license.
Nevertheless, if anyone is really concerned, why don’t you require
the distributor’s to provide a limited license as a condition of the
sale. At least to the extent of quantities purchased. Also, you could
ask your own attorneys to craft a statement in your purchase orders
that as a condition precedent to the sale of Argentium Silver, the
distributor affirms he is authorized to and does convey a license to
use (appropriate language in place of use) the Argentium Silver. This
should be followed by an indemnify, defend, save and hold harmless
clause.

Anyway, you get the point. It can either be addressed pro actively
by you in your purchase order, or you can demand the same of your
distributer / suppliers. Obviously, the same reasoning for
unambiguous language applies to laws of commerce and depending upon
your State etc., language may differ. Accomplishing this should take
less than 2 hours of time from a competent attorney and even with an
expensive "Philadelphia, or in my case Washington, DC lawyer this
shouldn’t be over $800.00.

If it were me, and I couldn’t afford it, I’d talk with my supplier
and then just watch the forums and see if a cease and desist notice
shows up or is talked about by one of the larger members. If you
don’t have significant assets to protect, it’s unlikely anything more
than a cease and desist notice would ever come your way.

Sincerely,
Larry Feller

19

Interesting string here. So do you think if stern get’s the
licensing right’s to make sheet and wire and such, pays the inventor
his cut, and then say someone like rio etc sells it to you, does the
patent still effect the end user as far as anything you do except
say making some diffusion bonded mokume.

Maybe those lurkers here of the two formentioned could advise us as
to how their product is to be used and not used. I would think that
if someone sold something and you did something with it and got sued
for using it in a certain manner, that they would be liable in the
end for not disclosing this info.

Just a thought.

It’s a tricky thing this patent stuff. I feel like I could get sued
sometimes if I even look at something the wrong way these days. I
recently saw someone with a pair of pliers for a specific job that
had a patent number on them. I know of someone who let me borrow his
contraption he made 10 years ago and I don’t see his name on it. He
never thought of patenting it… but someone did. So do I think its
right?

I won’t say. You show a technique somewhere to someone or say
something about this or that and next year it’s in someones new book
or at a show as a lecture,but do we just run around in secret.

I still question this. Next year someone will trademark or
copyright the word jewelry and we will all be out of luck. It’s just
my opinion… but maybe it’s just “business”.

Daniel Wade
Infinities

20

I still believe this obsession over the hypothetical threat of the
Argentium Silver diffusion bonding patent to be out of order. There
are a variety of reasons including:

  • the patent in question has been granted for several years now (US
    filed date: 1998, granted: 2001, earlier abroad) and absolutely no
    one has ever been hassled, harassed nor served “cease and desist”
    papers in that time on the basis of this patent’s claims. Why would
    anyone assume they would be thusly harassed now?

  • the AS patent holder has a variety of other patents in place
    concerning AS and those don’t appear to bother anyone in the least.
    Again, think it through: the inventor wants you to buy AS and use
    it, not interfere with your work for whatever imagined reason.

  • the only reason that the patent holder has contacted AS users has
    been to help them in their AS work. There is no reason whatsoever to
    believe that he’s about to change that, especially given the time and
    effort he’s invested in getting the alloy to market.

  • there are many patents in place that describe various processes
    one uses on precious metals, soldering patents for instance. Does one
    assume then that precious metal artisans are about to receive “cease
    and desist” orders for soldering using whatever alloy happens to be
    named. No, of course not, one would only concern themselves if they
    tried to duplicate the named alloy and sell it as a solder.

  • if the AS patent holder did not have such a patent in place it is
    very likely someone else would. The AS patent holder has a vested
    interest is seeing his alloy succeed in the market and is therefor
    very unlikely to do anything to impede it’s process, such as
    harassing AS diffusion bonders. The hypothetical “other” person would
    have no such concern for the AS users health and happiness because
    all that person would have control over is the diffusion bonding
    process itself. In other words you’d be much more likely to be
    harassed for diffusion bonding if someone else held the patent for it
    that if the AS inventor holds it. One could go so far as to see his
    holding of the patent as a protection for all of us that might want
    to use diffusion bonding on AS: he’s protecting our right to do so
    where someone else would just be in it to make a buck off diffusion
    bonders everywhere.

  • it makes absolutely no sense that one would hold such a patent in
    order to harass diffusion bonders of the alloy. What does make sense
    is that the AS inventor is laying claim to the alloy’s unique ability
    to diffusion bond easily in order to maintain control over products
    that might feature themselves as a diffusion bonding
    germanium-based alloy, not diffusion bonded products. On the one
    hand you control the original product, on the other you control…
    what, a small handful of people who might want to do a little
    diffusion bonding? Again, it makes no sense.

  • and finally there’s the issue of qualifications. As Larry Feller
    recently put it: “My contract lawyer told me the the judges usually
    hate patent law because outside the patent system, almost know one
    fully understands it.” Are we to believe that the non-professional
    patent commentators here on Orchid not only know the system better
    than the professionals but also know the legal reasons for having
    such a patent in place? I seriously doubt that.

The bottom line if you ask me is “what is this really about?” If
it’s to warn us about a potentially malicious patent then I’d say
“thanks, but you’re no expert on this, your fears seem a little
unsubstantiated, and it doesn’t really make much sense anyway.”

If its purpose is to scare us off of using AS because of some
completely hypothetical legal threat then I’d say pretty much the
same again, not to mention being curious why one would want to do
that.

And if the purpose is to raise public support against the perceived
ills of a patent that was granted several years ago I’d say
“shouldn’t you be talking to a lawyer?”

For all of these reasons I respectfully suggest that this is a dead
issue. In the face of all that we’ve seen over the course of this
discussion I think it’s not at all unreasonable to start questioning
people’s motives and agendas if this continues on.

Cheers,
Trevor F.
in The City of Light
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