It's Hard Enough to Make Boats

Profession:Benesch Friedlander Coplan & Aronoff LLP

By W. Scott Harders

Originally published in November 2001

Earlier this year, a ruling by an appeals court designated to hear appeals on patent matters, seemed to allow executives at Regal Marine Industries to breathe easier. The ruling announced that Regal did not infringe a planing boat hull patent held by Harry Schoell. That's right, a patent suit over a boat hull.


Mr. Schoell filed a patent application in 1990 claiming as his invention a planing boat hull that had two parts - a front hull and a rear hull connected by a stepped offset. He described the front hull as including a V-shaped keel extending from the bow to the stepped offset. The rear hull was described as including a generally flat aft keel.

The patent, in patent parlance called "the '202 patent," was granted in 1995. Mr. Schoell sued Regal in 1997 alleging that their FasTrac design infringed his patent. The FasTrac design indeed includes a front V-shaped hull connected by a stepped offset to a rear hull. Specifically, the front keel has about a twelve-degree deadrise at the offset, which increases toward the bow. The aft keel also has about a twelve-degree deadrise at the stern.

Regal argued that their FasTrac could not have both a V-shaped front hull of twelve-degrees deadrise and greater, and a generally flat aft keel also of twelve-degrees deadrise. Regal asserted that its twelve-degree V must be either "V-shaped" or "generally flat." It could not be both.

The court was persuaded. On April 17, 2001, the court entered judgment for Regal because the FasTrac aft keel was not "generally flat."

But Is It Over?

You might think a judgment of non-infringement would end the matter. Usually, but not always, it does. Remember one thing, the court's ruling was a factually specific comparison of the features of the FasTrac design and the particular claims of the '202 patent. That comparison ended favorably to Regal. However, Mr. Schoell had other weapons at hand.

In 1997, shortly after the lawsuit discussed above was filed, Mr. Schoell filed another patent application. This was a so-called "reissue application" which, because it was filed within two years from the issue date of the '202 patent, is entitled to broaden the claims of the parent. In other words, if a reissue application is filed within two years of its parent, the applicant can remove particular limitations from the claims of the parent case. This is exactly what Mr. Schoell appears to have done.


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