Sherrill squashes Sidewinder

Greetings all,

Please hear out my position on this matter.

In 1999 I invested significant time, effort and dollars into protecting an idea I had while picking up a wire raising head built for an extension pole. The Big Shot was a considerable twist on the common slingshot but well suited to launching a heavy projectile vertically in a manner that, perhaps no projectile needed launching before. I knew instantly that the idea was different enough from a common slingshot to possibly be patentable. That difference, for those not clear, is a pole beneath, and running parallel to the sling mechanism that results in zero recoil and maximum thrust of weighty projectiles. Up until that day, there existed no equal product. The risk I took on investing “a lot of money” on patent protection was that it might not return the investment. In the end the US patent office agreed that my idea was patentable (utility patent, not the less significant design patent) and assigned to Sherrill, Inc. our patent number.

If you held the utility patent on, let’s say the tennis racket and someone came out with a square faced version with a folding handle for portability-sake they would still have to pay a licensing fee and costs associated with developing the legal agreement. With legal expenses already exceeding $6,000 in this single matter Jeff elected to pass.

As I told Jeff over a year ago at FDR State Park we have been working on a Big Shot redesign that will be very portable, lightweight and include a trigger. I’m expecting the latest prototype within days. The project has taken much longer than I would have preferred and has quite high associated costs… but it’s looking pretty good.

For anyone not familiar with patent protection, the return on this significant investment is one thing and one thing only, a tool to dissuade or halt infringement. For whatever all of the banter in this thread, especially in “defending the little guy from the corporate giant,” please don’t loose site of the sole reason inventors and corporations make this considerable investment, it’s to possess a defense in the case of infringement of a similar product. When Jeff took his product outside of private sales among friends and onto the open market (his and another retailer’s web site), I took the same action I have on numerous other occasions and sought legal review, followed by advise and finally action, a very expensive endeavor every step of the way. In the end I was convinced “by experts” that there was infringement.

This pretty much sums up my defense in the matter. I can honestly say though, that any perceptions of my small business being the cruel, unwieldy and giant corporation we’re being framed as, are without merit. We still operate in the small town I was born in, employ less than 50 people and generate no more revenues than a single, well-run grocery store. In addition, SherrillTree supports every charitable opportunity the company can afford for the tree care industry including TreeFund, ISA, Redwood League, Arborday Foundation, etc., etc. As to operating a relatively successful small business, I harbor no shame or regret, decisions like this one have to be made to protect investments.

And lastly, there is zero truth in SherrillTree having copied the Harrison Rocket design, ZERO. SherrillTree neither requested nor commissioned Weaver Leather to replicate this design, which by the way, is neither patented nor trademarked by Andrew as far as I’m aware. SherrillTree switched to this product only after it was in full production and available through a number of other retailers. We chose a custom color so that we might continue to offer our warranty. Perhaps the writer who leveled their hypocrisy accusation based on false information will take note.

Best to all,

Tobe Sherrill

(received by Patty and pasted in. Tobe is on the road and can't access his account.)

So now we have two sides to this issue. How does the tree climbing community feel about this?

I have read, pondered, and understand both sides.

As a new-ish tree climber it has become obvious that Rec. tree climbing is a new enough sport that all ways of doing something will not be discovered for a very long time - maybe never. Rock climbing has been around A LOT longer, and new ideas are being brought to light every day. That being said, we \"The climbers\" are the ones who develop new ideas, products, skills, and tactics. It is one of the foundations of the sport. Necessity is the mother of invention, as they say.

Not allowing someone to share their ideas, good or bad, doesn't hurt the individual. They can use whatever they make when ever they want, no matter WHO invented it or came up with the idea first. From a climbing perspective, stifling an idea/creation before it has a chance to be proven by it's intended users doesn't hurt the creator either, but more so, the entire climbing community.

Litigation is NOT the American way. Freedom of choice, on the other hand, is. This is not a statement for or against either side, it is an argument FOR freedom of choice. We as climbers have a right to choose the products WE wish to use...and, right or wrong, we will do just that.

treeman wrote:

So now we have two sides to this issue. How does the tree climbing community feel about this?

As a newbie I don't quite feel I'm yet part of the community but it seems that when a patent is first written there is a window of time when the Patent Office is very receptive to complaints regarding the new patent. Maybe we as a community should be alert to new patents related to our activity and be ready to object to any that we feel are obvious or already published ideas in use. Someone mentioned that large slingshots were already known to be in use before 1999.

Well in my view: It is starting to get ugly with people taking sides and making accusations that are not productive to anyone and are not likely to solve the problem that should have been resolved by the two parties prior to going the lawyers way.

Now nobody will benefit and a few egos will be damaged hopefully with not long term effects on the amount of contribution and collaborations among the climbing groups and this particular supplier.

The way the Internet works it is very easy to convey the wrong meaning or the wrong emphasis on the language and there are many opportunities for misunderstandings. The reader may not know if I'm mad, or joking or attacking someone and this is sad.

This has always(more or less) been a very lay back and united community and now the cracks of disunity are starting to show up with people calling for boycots and similar actions which hopefully would not impact too much this year's Rendezvous....

Shouldn't affect the Rendezvous at all, it's unrelated IMHO.

I'm glad it was brought out into the open for discussion, painful but a needed discussion.
-moss

Someone else found Jeff's story on another board. Here's what he wrote, which seems mighty reasonable:

I saw this on a board called ????????????????????.org that had both the message from Toby and from the guy who is in the argument with him.

---

I will attempt to lay out a time line with supporting documentation when I have it to hand.

Summer of 2006 I began to contemplate a slingshot head that could be folded flat and stored in a pack to make it well suited for backpacking into rough country.

November 2006 I had produced a VERY crude prototype of a folding head that had the “Fold Flat” Feature that I have since developed into the Sidewinder.While at the FDR Get together I proudly showed Mr. Sherrill, my prototype asking if he would be interested in a design of this type. He was generally negative about the whole folding aspect and seemed less than impressed. (I did say that it was in a rather crude form) he stated that he had people working on a smaller and more compact version of his “Big Shot” (and indeed subsequently there has been a revision to the Big Shot that reduces the bulkiness somewhat.). For those of you who were there that was the year that Bill Maher, Joe Maher, and my self demonstrated the rescue of a hunter from the deer stand. Any way back to the Sidewinder time line. Please Note: To this date I had no idea the Big Shot was a Patented product, Indeed I still have seen no patent number on the product nor in any advertising about the product. My point here is that this could have been headed off well in advance had Mr. Sherrill informed me that this was a patented product. At the very least I would have understood what the situation was.

Somewhere about May of 2007 I sold the First of the Sidewinders to Moss and Hunabku, The significance here is that in order to obtain a patent on a design you only have 1 year from the date of the first sale of that product. So The ship has sailed for ANYONE being able to patent the Sidewinder fold flat design in this configuration.

Late in 2007 I attempted to interest Newtribe in carrying the Sidewinder, then in spring of 2008 Newtribe added it to their product line. (I was very proud to have created an item that had enough utility to be presented to the general climbing community via the company that in my opinion is at the very heart of recreational climbing.)

The euphoria was soon to end:
On June 9th I received an email from Toby:
Greetings Jeff,

I hope these days are lending themselves to plenty of time for tree climbing
and other outdoor activities.

As you know I hold patent number 5,887,577 on the Big Shot line launcher
that your Sidewinder device closely resembles. Did you research my patent to
see if you were in conflict?

When you displayed this mechanism at FDR park in Georgia I assumed you were
only making it for yourself, but now that you are marketing it publicly I
must inform you that I have investors that will very eagerly research your
product and file suit if indeed it violates my/our patent.

If not in violation I'd like to be one of the first to wish you the best of
luck.

Warm regards,

In response to this I posted on my website (treetrek.net) that the Sidewinder was not available and I disabled the link that made it possible to purchase one, and of course Newtribe promptly removed them from their website.

I spent several months talking to several people and considering what to do. Finally I decided that it would be worth the time and expense to seek the advice of a professional. It became clear to me that no matter what I thought I needed the professional unbiased opinion of someone that specializes in patent law.

In Mid September 2008 I set up an appointment with Mr. Bill Parks,

I borrowed a Bigshot and I took both the Bigshot and the Sidewinder so that he could see first hand what these two products were. After that first hour he informed me that he would be able to give me a better evaluation of whether or not I was infringing on the “Sherrill” patent if he first pulled the “Patent History” this is the exchange that takes place between the patent office and the patent applicant or his attorneys. Any way I decided to pay for the pulling of the patent history because I wanted the most complete opinion that I could get.

Here is the response that I got September 30th 2008

I have received and reviewed the file history for the Sherrill patent
(5,887,577).

Please note that this is upon a quick and cursory review of the file
history and based upon my memory of Jeff's product as we specifically
viewed it last week. With regard to the Sherrill patent, the first set
of claims, 1-7, were actually deemed allowable upfront, presumably
because of the curved arm features that are predominant within the
drawings and are noted as being necessary to provide the force to exert
on the target projectile for vertical delivery. Specifically, the
objects of the invention include this curved configuration, and nothing
within the body of the specification remotely discusses any design other
than such a curved formation. The claims also require this curved
design, and thus, as it appears to relate to claims 1-7, even though
equivalent infringement may be possible, the fact that a curved
configuration is required for proper functioning seems to remove that
possibility as it would concern a distinctly non-curved design. This
equivalency possibility may cover other curved arms that do not curve in
the direction and at the angle noted; but, without any curvature, it
would appear that Jeff's product would not infringe upon these claims.

As for the remaining claims, wherein the slingshot component may be any
Y-shaped design as long as it is present on a telescoping shaft with a
spring-biased pin that extends through a hole in the side wall of the
ferrule into a corresponding hole in the shaft, the necessity of
amending those claims to read such a specific result removes any chance
of equivalency infringement at all. As Jeff's product does not have the
same configuration as is required in those claims, no literal
infringement resides. Importantly, I might add, is that the patentee
did not simply claim a Y-shaped slingshot of any design on a telescoping
pole of any type. He realized that to receive a patent on the
configuration he had, he necessarily limited his patent claims to a
specifically curved-arm Y-shaped slingshot in one embodiment, or had to
limit the telescoping pole to a spring-biased pin configuration in the
other embodiment. This militates, as well, against any equivalent
infringement finding for the first set of claims (1-7) over Jeff's
product, since it would seem evident that were Sherrill to believe his
invention were broad enough to warrant patentability over any Y-shaped
slingshot for vertical projectiles, he would have claimed such and the
separation of the two sets of claims as eventually performed would not
have been necessary; he would have simply claimed, at some point, the
Y-shaped slingshot on a telescoping shaft. Thus, he knew that such a
design was not patentable, and thus he should not have the ability to
claim that such a design deserves to be considered equivalent for
patentability and infringement purposes, particularly over Jeff's
product that does not meet all of Sherrill's claim limitations. I
cannot say, however, unequivocally, that Jeff would not be sued for any
infringement issues, nor can I say definitively that he would be 100%
successful in defending such a potential lawsuit; in my opinion, though,
I think he would have a strong probability of success were Sherrill to
seek such an action.

After receiving this news I informed Tobe Sherrill that according to the attorney that I consulted I was NOT in violation of his patent, Here is the Email that I sent on October 16, 2008

Hello Tobe,
After talking to numerous people in tree climbing and manufacturers of products in other fields I decided to take the added step to have an attorney that specializes in intellectual property research your patent as you suggested in your email of 6/9/2008. Upon meeting with Mr. Parks, the patent attorney, he advised me that to give a fully informed opinion he would need to obtain the patent history and then perform a review of both the patent and the patent history. My purpose for doing this was to obtain the objective informed opinion of a professional to base my actions on, rather than basing them solely my personal subjective opinion. After reviewing the patent we are confident that the Sidewinder does not infringe upon your patent (5,887,577). One of the principle characteristics of your design is that each of the arms of the head arches through an angle greater than 90 degrees, because my head is flat and is designed to be compact and easily stored this conflict in avoided entirely. Mr. Parks went on to describe other more technical reasons that my design does not infringe on your patent, frankly it got a bit over my head. The bottom line is that hopefully this will satisfy both you and your investors that I am not infringing on your patent and therefore you would not stand to loose any patent rights due to the presence of the Sidewinder in the market place.

We are confident that I am not infringing on your patent therefore I am returning to offering my Sidewinder slingshot to the general public.

I hope to see you at the FDR gathering in November.

Sincerely,

Jeff Newman

I waited a week or so, receiving non response I proceeded to enable the sale of Sidewinders on the Treetrek.net website. Again I thought that things were on tract everything was going fine.

On November 3rd a Mr. Robert Mason of Clemmons NC ordered a Sidewinder Via my website. It did not take long to ascertain that Mr. Clemmons is a patent attorney, and I expected that he was acting on behalf of Mr. Sherrill. I did not think that this was a bad thing, If I were in his shoes I would want my people to take a look at the “Sidewinder” and give me their opinion.

On or about November 21 I received an email from Mr. C Robert Rhodes, an attorney representing William T. Sherrill.
The letter ended by stating that if I did not notify them by December 5th 2008 “We willl be forced to take whatever action is appropriate in view of the circumstances”

As a result of this letter I sought out the opinion of a firm in Atlanta that did some “Probono” work, he did meet with me and did read the documentation that I had accumulated by this time. I did not fall into the criteria for them to take my case on “Probono”. He did agree that the “Sidewinder design was patentable in it’s on write and was not infringing on the Sherrill Patent. HOWEVER he did give me the same parting advice as the other attorney. Based on the potential sales that I would have within the recreational climbing community I would NEVER recoup the legal expenses incurred if I went into court with Mr. Sherrill. ( The Lawyer that I consulted did bring up an interesting point: Why does someone patent a product and then not advertise the fact that it is patented?)

For this reason I sent the following Email on 11/25/08


Hello Tobe,

If my actions have caused you any consternation or aggravation I apologize, it has been my intention to deal with this situation of patent infringement in a fair and honest way. This is why I took the step of speaking to a patent attorney to get an unbiased and professional opinion upon which to base my course of action and it was never intended as a provocative or adversarial attempt on my part. I recognize that no matter what my patent attorneys opinion is if your patent attorney feels it is a violation it would never make financial sense for me to try to force this issue in court.

I do feel that the Sidewinder meets a need that exists solely in the Recreational tree climbing arena, due to its compact and light weight nature. Would you consider licensing me to produce and sell the Sidewinder for something in the 2 to 5 percent range per unit? In this way the needs of the Recreational climbers would be served and your patent rights would be assured. Perhaps you would even consider marketing them on your website along with the Recreational equipment.

If you are unwilling to license me to sell the Sidewinder under your patent I will permanently remove it from my website and cease any further public offerings of the Sidewinder.

Please feel free to let me know if there is any further action that needs to take place to make clear my intentions. I want to work with you on this matter to avoid any legal action and get this matter resolved quickly.

Sincerely,
Jeff Newman

This concludes my time line.

I appreciate that there are a number of you that sympathize with me and you honer me with your support. I would encourage each of you to remember that one of the major reasons for the existence of this board is for the free exchange of ideas and experiences. I would hope that we do not go to far down a path that begins to pull us apart.

Now, It’s late and I have to get up Early!

_________________
Jeff Newman
Climb High Look Far

A while back I was absolutely sure I wanted a Sherrill slingshot. After this all came to light, I, of course, changed my mind, wanted to support the \"little guy\" and wanted a Sidewinder instead. I neither NEED nor do I require a slingshot of any type for the climbing that I do. Therefore, I have decided to follow my head rather than my heart. I'm going to steal ideas from both devices and make my own - I'M KIDDING! Don't send lawyers' letters! I'm not going to buy ANY pole mounted-line launcher-sling shot-type device of any type. I simply don't need one.

As I read all of this (and I have read ALL of this, including the patent information) I have come to the logical conclusion that both parties have reasonable arguments and both parties are being unyielding at the same time. Tobe and Jeff will never come to their own amicable agreement now. Because lawyers are involved, all decisions will be made/suggested by those lawyers.

Just the thought of getting into the middle of all of this makes me realize that my thinking was correct in my previous post. The only casualty of this conflict is going to be the climbing community itself. There will be multiple factions: One supporting Tobe and one supporting Jeff. There will, however, be yet a third party I hope, the one I have have chosen. The one who refuses to agree or disagree with either of the opposing sides. The one who will forget all of this nonsense and will go out and enjoy Recreational Tree Climbing for what it is, FUN.

Don't let the FUN be taken away!

Baker wrote:

Just the thought of getting into the middle of all of this makes me think that I was absolutely right in my previous post. The only casualty of this conflict is going to be the climbing community itself. There will be multiple factions: One supporting Tobe, one supporting Jeff, and yet another, the one I have have chosen, who plays Switzerland if you will. refusing to agree or disagree with either of the opposing sides.

The point I've been trying to make on the TCC board (I can only contribute so much to this discussion across message boards) is that the Big Shot and the Sidewinder are not mutually exclusive. They are different tools with different use. So I would make my choice based on my use scenario, not on a big buy vs.little guy scenario. For instance the big Shot is the perfect choice if you're getting out of a vehicle and walking a short distance to a tree. Or if you're a daily working climber the Big Shot is the best choice, it's a durable tool that can be counted on day in and day out. The Sidewinder is designed as a rec climber tool. It's light and packable. It is not as robust a slingshot as the Big Shot but it's great when you're carrying your gear on your back for a long hike. There is overlap in use (rec climbers who don't mind carrying a Big Shot a distance) but it's a very small.

I'm not focused on the big guy vs little guy aspect, what I'm concerned about is the suppression of a tool that's useful to the rec climbing community. As more info has come out I am increasingly convinced that the design of the Sidewinder head is unique enough that if both parties decided to waste money counter-suing on patent infringement, that the Sidewinder would be vindicated as a unique design not infringing on the Big Shot patent.

The way I look at is that the patent holder, (Tobe) is defending his immediate business interest but missing the bigger opportunity of cooperating with innovators in the rec climbing community. That's why I'm urging Tobe to revisit a discussion with Jeff and make another effort to work something out agreeable to both parties.
-moss

Baker wrote:

...The only casualty of this conflict is going to be the climbing community itself. There will be multiple factions: One supporting Tobe and one supporting Jeff. There will, however, be yet a third party I hope, the one I have have chosen. The one who refuses to agree or disagree with either of the opposing sides. The one who will forget all of this nonsense and will go out and enjoy Recreational Tree Climbing for what it is, FUN.

Don't let the FUN be taken away!

You have your priorities in the right place.

Not to worry, I think this is much less polarizing than it might appear. Once you dig deeper into the rec climbing community you'll find endless minor grudges and past hurts. When everyone gets together to climb it all dissolves away. I've always tried to keep an open mind and not take sides in the various factional disputes in the community. In this case I couldn't be quiet about how I felt. The tree climbing experience will win out in the end.
-moss

moss wrote:
The way I look at is that the patent holder, (Tobe) is defending his immediate business interest but missing the bigger opportunity of cooperating with innovators in the rec climbing community. That's why I'm urging Tobe to revisit a discussion with Jeff and make another effort to work something out agreeable to both parties.

How much of the rec community is even aware of the Sidewinder or how it differs from the Big Shot? I've never seen a photo or any detailed des cription. If the most complex part is the trigger assembly I don't see how Tobe's patent would cover that, although it's possible some other patent does.

Davej wrote:

How much of the rec community is even aware of the Sidewinder or how it differs from the Big Shot? I've never seen a photo or any detailed des cription. If the most complex part is the trigger assembly I don't see how Tobe's patent would cover that, although it's possible some other patent does.

The Sidewinder doesn't have a trigger assembly.

The main difference between the two slingshots is the head design and construction, radically different. Sidewinder head has folding arms, a completely different type of mount system and uses a very different type of pole. Every major rec climb get together I've been to in the past two years I've seen Sidewinders and Big Shots, rec climbers who use big slingshots are aware of both designs.

There are detailed photos of the sidewinder in this TCC thread, just scroll down until you reach the photos:
Sidewinder

You can see photos of the Big Shot on the SherrillTree web site.
-moss

Sidewinders and BS
I was thinking we were giving this dead horse a rest?
Are we back on discussing it??

oldtimer wrote:
I was thinking we were giving this dead horse a rest?
Are we back on discussing it??

It's dead on CC but here in \"newbieland\" I thought I'd mention that I'd never even seen a good closeup photo of the SW, so could not fully appreciate the differences.

The collapsing pole looks to me like the painter poles you can buy at your local hardware store.

oldtimer wrote:

Sidewinders and BS
I was thinking we were giving this dead horse a rest?
Are we back on discussing it??

Apparently so