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Unlocking the key patent mystery.

IGNORANCE ABOUT PROPER KEY CONtrol can be costly in both monetary and human terms. Theft, industrial espionage, terrorism, rape, and other forms of personal assault, as well as higher insurance premiums and litigation costs should be of serious concern to anyone selecting a key control product.

In today's market, education is part of the job in the hardware industry. Restricting the manufacture and distribution of key blanks is the heart of key control. It is not good enough to be told that a key blank is restricted. Users need to ask, "Restricted by whom and in what way?"

Security managers need to be careful about marketing language. For example, they may be told, "You can't buy genuine Kumquat keys from anyone but the Kumquat Lock Company." Such a statement may be true, but it is crucial for the buyer to ask whether any of the after-market manufacturers make imitation blanks for Kumquat locks. If the answer is yes, the buyer should shop elsewhere.

For example, one leading lock company makes blanks called numbered sections and considers them restricted for use on selected projects only. These blanks are not, however, protected by patents. When just a few end users had them, after-market key blank makers had no economic incentive to produce imitation blanks. The return did not justify tooling and marketing costs. As the user base has grown during the last decade, however, several key blank manufacturers have started to produce and sell them.

Critical to key control is the manufacturer being the sole source of key blanks. A strong patent of the proper kind is part of the answer. The other parts are intelligent controls over how and to whom the blanks are sold and good key system management by the end user.

TWO TYPES OF PATENTS ARE AVAILABLE. Design patents relate to appearance only and are granted for fourteen years. Utility patents relate to function and are granted for seventeen years. The two patent types are mutually exclusive. Design patents may not have anything to do with how a lock works. Utility patents cannot be based on appearance.

Design patents provide no protection against something that looks different but works in the same way as the patented item. Design patents are useful to the manufacturer for building brand recognition. In 1935, Schlage Lock Co. was allowed a design patent on its bow shape. This distinctive shape helps key cutters everywhere identify a Schlage key presented for duplication.

The design patent did not protect Schlage keys from being copied. Until the expiration of the patent, companies, such as Cole, Curtis, and Ilco, simply used a slightly different bow shape. Since the expiration of the design patent, the bow shape has been imitated exactly.

Changing a bow shape, over-milling the blade, or breaking corners on the key section can render a design patent impotent. There are other ways. For example, "neuter bow" blanks, with plain, rectangular bows, are a successful way of circumventing designs; they give no indication of the original manufacturer.

Design patents are good for protecting unique knob or lever shapes, though they do not adequately protect key blanks and never will. Some people may claim that a design patent can protect the actual shape of a key section, that is, the cross sectional shape. Such claims may not hold up in court.

At this writing there is one case of a trademark protecting the cross section of a key blank. WILKA, a European lock manufacturer, made a key blank which, when viewed on end, spells its trade name, WILKA. Making a key blank shaped that way constitutes trademark infringement. However, if a company were to make a blank that entered the cylinder, operated when properly cut, but was altered so that the name was not recognizable, it is doubtful that WILKA could stop it.

While design patents should always be distrusted for key control, utility patents do not necessarily guarantee it. It may be possible to bypass a utility patent. The claims in the patent must be carefully examined. Claims concern what is novel.

Suppose an individual invented a special screw and corresponding screwdriver. Suppose he or she is granted both a utility and design patent. Is the inventor certain to make a lot of money from these inventions? Only if the patent cannot be bypassed by a nonpatented device. If an existing screwdriver in the field can install and remove the newly invented screws, the new patent holds little weight.

Likewise, if a key can be cut without actually infringing the claims of the patent, the product offers inadequate key control protection. For example, some utility patents do not actually protect the blank itself. They protect the process of how cuts are applied to a blank to turn it into a working key. Consider the case of a patented high-security lock on the market today. It may be possible to cut keys without infringing on its patent since the patent concerns the novel way certain cuts are made at the factory. It is possible that other producers can make the same cuts by an older, nonpatented method and, thus, not encroach on the patent.

Also, patents expire and are not renewable. Take, for example, the KESO patent covering a dimple key sold by Sargent & Co. A dimple key, in which its silhouette does not change when bitted, is used for high security locks and requires special machinery to produce. The patent on the product expired years ago. Blanks are available, but some key control remains because special equipment is required to make these keys.

A patent must be able to stand up in court to be of real value. Advertising may be deceiving. End users should talk with as many industry experts as possible and ask why a given patent offers more protection than the competitions' patents. The buyer should also ask for the complete patent number. Design patents begin with the letters DES. An attorney should investigate the strength and integrity of the patents involved.

Companies ultimately have to protect themselves. They will fare best if they know what to seek out and what to avoid.

Key Consumer Questions

Before buying, the end user should thoroughly investigate the product. The following questions address the most important concerns:

* What kind of patent does the product have--utility or design?

* If it is a utility patent, how does the patent work?

* Can a nonpatented blank be cut on existing machinery in the field and operate the lock?

* What is the issue date, and when will the patent expire?

* Does the patent apply only to the lock, or to the cut keys, and key blanks, as well?

* Does the patent only apply to a special process of cutting the keys? If so, is the end user able to make the keys by some other process and circumvent the patent?

* What would happen if someone made a key blank for the lock or a cut key?

* Do any after-market manufacturers make key blanks that enter the product?

* If after-market blanks can be altered to enter and operate the product, how does that constitute patent infringement?

Jerome V. Andrews, CML (Certified Master Locksmith), is key records manager and director of training for Kaba High Security Locks in Southington, Connecticut. Andrews is a member of the board of the Associated Locksmiths of America and the author of Fundamentals of Master Keying.
COPYRIGHT 1993 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Physical Security; key control; design and utility key patents
Author:Andrews, Jerome V.
Publication:Security Management
Date:Oct 1, 1993
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