Paper D 2016 - English - Industry Canada · 22.04.2016 · and an unmarked English, French or bilingual (English/French) dictionary. ... There are 100 marks available in this paper

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2016 Paper D – Patent Infringement

PATENT AGENT EXAMINATION

INSTRUCTIONS TO CANDIDATES

1. The only aids permitted are the copies of the Patent Act and Patent Rules provided by CIPO and an unmarked English, French or bilingual (English/French) dictionary.

2. Cell phones, smart phones, and any device that allows for wireless communication or the

retrieval of information from memory may not be used during the examination. 3. You must place your assigned number on each examination paper, answer book and

envelope. No other identification is permitted on any material submitted. 4. You have four (4) hours to complete the examination. At the conclusion of the examination

period, place the examination paper and answer book(s) in the envelope and give the sealed envelope to the invigilator.

5. Failure to respect instructions 1, 2, 3 or 4 may result in a candidate being given a mark of

zero (0).

6. You must provide your own pen with which to write the paper. 7. For each question, marks will be provided for an answer (or a part of an answer) that:

clearly identifies the question being answered, BY NUMBER; is written LEGIBLY, IN INK, double-spaced in THE ANSWER BOOK; and is provided on the right-hand pages of the book ONLY.

Marks will NOT be given for: anything written on a left-hand page of the answer book or on the examination itself; and anything that cannot be deciphered with a reasonable degree of certainty.

8. Salutations, signatures and other formalities of correspondence are not required in your

answers; substance is important. Read each question carefully and ensure that your answer responds to the question posed. Answers given in point form are acceptable except where the question specifically asks you to draft or write your answer.

9. The marks referred to throughout the paper have been provided to show the relative weight

attributed to each question. Marks are awarded for analytical and problem solving skills, communication skills, drafting skills, prioritizing and judgment skills in addition to knowledge demonstrated in your answers.

10. There are 100 marks available in this paper. The pass mark is 50.

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PATENT AGENT EXAMINATION

PAPER D – PATENT INFRINGEMENT

Friday, April 22, 2016, 9:00 am to 1:00 pm

This examination comprises Part A (opinion) and Part B (short questions).

Part A comprises Questions A1 to A5 and also includes documents D1, D2, and D3.

Part B comprises Questions B1 to B10.

Instructions

Provide the best answer to the following questions.

Unless expressly indicated otherwise, every answer must include a discussion and/or reasoning

appropriate to the mark allocation. Do not provide irrelevant or extraneous commentary. Answer

only what is asked and do not assume any facts that are not expressly stated. Do not import your

own knowledge of the technology into your answer.

Citations to legal authority (case law, statutory provisions, and/or regulatory provisions) are only

required when explicitly requested and should be clear and precise. No marks will be awarded

for boilerplate language.

Your infringement analyses must address all elements of the claims on their own merits. Do not

simply conclude that a claim is uninfringed by virtue of its dependency on an uninfringed claim.

However, when a claim refers to a previous claim by number, you may incorporate your earlier

analysis of the previous claim by reference rather than repeat your analysis. Any incorporation

must be specific and relevant to the question at hand, and the location of the incorporated matter

in the answer booklet(s) must be clearly and unambiguously identified.

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PART A – TOTAL 78.5 MARKS

Documents

The following three documents are included in this examination:

D1: Canadian Patent No. 2,XXX,340 issued to PoolSharks Inc. (the ‘340 Patent)

D2: Description and drawings labelled “Proposal 1 – The Flutter Kicks Co.”

D3: Description and drawings labelled “Proposal 2 – Hydrospeed Inc.”

Two duplicate sets of ‘340 Patent claims are provided at the end of this paper for your use

in presenting your answers in the answer booklet. Use of these duplicate claim sets is

optional.

Background

The Association of Canadian Swimming Schools (ACSS) issued a Request For Proposal (RFP)

on August 2, 2014 for the one-time purchase of training swim fins to all of its member schools.

The Association requires that any parties submitting a proposal, as well as their subcontractors,

must be certified by the International Ethical Business Practices Association (IEBPA) and that

the swim fin be a new design, which is currently not on the market.

During the RFP process, a proposal put forward by PoolSharks Inc. is rejected on submission.

PoolSharks Inc. is advised that they are precluded from participating in the RFP as they are not

certified by the IEBPA. PoolSharks Inc. does not take this news well and responds to the ACSS

as follows:

We have reviewed the requirements for swim fins outlined in your RFP and are of the

view that any swim fin meeting all your requirements may infringe upon our recently

issued Canadian Patent No. 2,XXX,340. Tread lightly in making your decision!

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The ACSS has narrowed down their decision to two parties whose swim fins meet their RFP

requirements and otherwise appear to perform equally well based on test results and user

surveys. The decision comes down to swim fins supplied by The Flutter Kicks Co. and

Hydrospeed Inc. The Flutter Kicks Co. operates primarily in Canada and has manufacturing

facilities in Quebec. Hydrospeed Inc. is a U.S. based company with manufacturing operations in

Vietnam, and has no prior sales or other activity in Canada.

The ACSS has not yet informed its member schools of the ‘340 Patent or of the notice it received

from PoolSharks Inc. The ACSS is responsible only for selecting a single, approved supplier of

swim fins, and for purchasing in bulk (to obtain better pricing) swim fins for all its member

schools. The ACSS never comes into possession of any fins as they are shipped directly to the

member schools. The ACSS bills the member schools on a per-unit basis but makes no profit on

its activities. That is, the ACSS charges each member school the exact per unit cost of each fin,

with no markup over its purchase cost.

The RFP process is entirely confidential and its participants and their details are known only to

the ACSS until the contract is awarded, at which point, only the selected supplier is made public.

The ACSS retains you for the purposes of advising of their risk exposure based on the ‘340

Patent depending on whether the supply contract is awarded to The Flutter Kicks Co. or to

Hydrospeed Inc., and based on the relationship between the ACSS and its member schools.

The ACSS gives you a bit of background information to bring you up to speed on swim fin

technology. In particular, a recent area of concern for swim fins has been the “angle of attack”.

You will learn more about this concept in studying the ‘340 Patent, but basically the “angle of

attack” is the angle between the direction of motion of a swimmer and the lengthwise alignment

of the blade of the fin, shown as angle θ in Figure A below:

FIGURE A: Schematic showing “angle of attack” θ

θ Direction of travel

Lengthwise alignment of blade of fin

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Question A1 (29.5 Marks Total) (a) Section 42 of the Patent Act defines the exclusive right granted to a patentee as the right

to make, use or sell the invention. List five propositions articulated by the Canadian

Supreme Court regarding the meaning of “use” in Section 42. Cite legal authority. [2.5

marks]

(b) Identify six forms of relief a successful plaintiff may be entitled to following a finding of

infringement by a Canadian Court. [3.0 marks]

(c) Construe the following terms as they are used in the claims of the ‘340 Patent. [Total

24.0 marks] Your construction must include identification and analysis of purpose or

function, as well as any essential features represented by these terms, supported by

appropriate reasoning and citations to the ‘340 Patent.

Marks are awarded for appropriately mapping claim terms to components in the ‘340

Patent, adequately identifying the purpose or function of the element represented by the

term, identifying any essential features of each claim term, and adequately supporting

your construction with appropriate reasoning and citations to the ‘340 Patent. The extent

of analysis expected to construe each claim term is commensurate with the marks

allocated for that claim term. A mere mapping of terms to components in the ‘340 Patent

is not sufficient and will receive no marks if you conduct no further analysis.

You may consider additional claim wording to provide a complete construction of a given

term or phrase. If you do so, you must identify the specific additional claim wording and

explain how it formed part of the analysis.

Identical terms and their plurals are expected to have the same meaning in each claim in

which they are explicitly recited. You are expected to construe each of the terms listed

below only once in your answer, even where that term occurs in more than one claim.

(i) “composite ribbed framework” in claim 1 [3.5 marks]

(ii) “at least one restricting member” in claim 1 [3.0 marks]

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(iii) “at least one biasing rib configured to deform as the fin bends” in claim 2 [4.0 marks]

(iv) “at least one flow channel” in claims 5, 6 and 10 [3.0 marks]

(v) “an inlet” in claim 6 [2.0 marks]

(vi) “[at least one biasing rib] on a top side of the swim fin and [at least one biasing rib] on a

bottom side of the swim fin” in claim 7 [2.5 marks] Assume your construction in (iii) is

carried through here. No marks are awarded for re-construing “at least one biasing

rib”

(vii) “means for controlling flexing of the fin” in claim 8 [4.0 marks]

(viii) “sinusoidal waveform” in claim 9 [2.0 marks]

Question A2 (5.0 Marks Total)

It has come to your attention that the U.S. equivalent to the ‘340 Patent has been litigated in the

U.S. During that litigation, there was some contention regarding construction of the phrase “an

axis where flexing of the fin substantially occurs” as recited in claim 3.

The point of contention relates to whether the axis of the fin where flexing substantially occurs is

(i) required to be at the intersection of the foot pocket and the blade or (ii) can be at another

portion of the fin, provided there is only a single axis where most of the flexing occurs.

(a) Identify two factors in favour of construction (i) and two factors in favour of construction

(ii). Your answer must include a reference to a relevant portion of the ‘340 Patent, along

with a statement of reasoning as to how or why the identified factor weighs in favour of

either (i) or (ii). Citations to legal authority are not required. [4.0 marks]

(b) Based on your response to part (a), which of the two constructions would most likely be

accepted by a Canadian Court, and why? [1.0 marks]

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Determine whether claims 1 [4.0 marks], 2 [2.5 marks], 3 [1.5 marks], 5 [3.0 marks] or claim

8 [3.0 marks] would be infringed by the use or sale in Canada of The Flutter Kicks Co. swim

fin, regardless of who carries out the infringing act.

No further exposition on claim construction needs to be provided, although your analysis must

clearly show how each element is or is not present. For full marks, your analysis must address

each element of the claim.


Determine whether claims 1 [3.5 marks], 2 [2.5 marks], 3 [2.0 marks], 4 [1.5 marks], 8 [3.0

marks] or claim 10 [1.5 marks] would be infringed by the use or sale in Canada of the

Hydrospeed Inc. swim fin, regardless of who carries out the infringing act.

No further exposition on claim construction needs to be provided, although your analysis must

clearly show how each element is or is not present. For full marks, your analysis must address

each element of the claim.


(a) Assuming both swim fins infringe at least one claim of the ‘340 Patent, advise your client

on which swim fin to select based solely on the information provided. Explain your

answer. [1.0 marks]

(b) The ACSS is concerned that Poolsharks Inc. may seek an interlocutory injunction seeking

to halt the RFP process so that a purchase contract is not awarded to any of the potential

suppliers. How likely would a court be to issue an interlocutory injunction given the facts

provided? Explain your answer by applying the test for interim/interlocutory injunction.

Cite legal authority. [5.0 marks]

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(c) Assuming the ACSS awards the contract to Hydrospeed Inc., and at least one claim of the

‘340 Patent is infringed, which party or parties could be held liable for patent

infringement and how so? Briefly explain your answer, citing legal authority. [5.5

marks]

(d) Assuming The Flutter Kicks Co. decides to market and sell their new swim fin regardless

of whether or not they are awarded the contract by the ACSS, determine whether The

Flutter Kicks Co. could be held liable for patent infringement given each of the following

scenarios. Briefly explain your answer, citing statutory authority and legal references.

[3.0 marks]

i. The Flutter Kicks Co. manufactures 100 swim fins during the period of

December 1 to December 15, 2014, for the purposes of selling to the general

public in Canada following the award of the contract.

ii. The Flutter Kicks Co. manufactures 100 swim fins during the period of

December 1 to December 15, 2014 and an additional 100 swim fins during

the period of October 1 to October 15, 2015 for the purposes of selling to the

general public in Canada following the award of the contract.

iii. The Flutter Kicks Co. creates all necessary engineering designs and procures

manufacturing capabilities for producing the swim fins in Canada, but

decides not to produce any swim fins until after the contract is awarded in

April, 2016, and sell shortly thereafter.

(e) Would your answers to (d) change if the scenarios were applied to Hydrospeed Inc. and

their manufacturing facilities in Vietnam. Briefly explain your answer, citing legal

references. [1.5 marks]

END OF QUESTIONS IN PART A

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PART B – TOTAL 21.5 MARKS

Question B1 (2.0 Marks)

You are curious about how hoverboards work, and decide to make your own hoverboard at home

so that you can learn how they work. Because you have never built a hoverboard, you conduct a

search and use Canadian Patent No. 2,XXX,898 to teach you how to do so. As a result, the

hoverboard that you build infringes claim 1 of the ‘898 Patent. You are so thrilled with the

performance of your hoverboard that you use it to commute to work every day.

Are you potentially liable for infringement of the ‘898 Patent? Briefly explain why or why not,

citing legal authority.


Identify four factors that can result in a Canadian patent having a term ending on a different day

than a United States patent for the same inventive chemical compound, even though both patents

claim priority to the same prior filing.


Your client, Snow Toys Inc., is the owner of a patent for a novel toboggan. The application for

patent named three inventors, Susan Snow, Allan Ice, and Peter Slide; but during prosecution the

claims were amended so that Slide was no longer an inventor of the claimed subject matter. The

inventorship of the patent application was never corrected before grant, but all three inventors

agree that Slide should no longer be considered an inventor.

Explain how your client can have the inventorship corrected now, citing both statutory and case

law authority.

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The following statements are either true or false. For those statements or conclusions that are

true, provide the best supporting citation to legal authority. For those statements or conclusions

that are false, provide a brief reason why the statement or conclusion is false and the best

supporting citation to legal authority.

No marks will be given for: simply indicating a statement to be true or false, with nothing

further; or for a false statement, providing a citation without a correct explanation or providing

an explanation without a correct citation.

(a) A Markush claim is a claim reciting a plurality of functionally equivalent components that can be selected in the alternative to produce the claimed subject matter.

(b) A patent was granted in December 1999 on an application filed in December 1988. The patentee can still bring an action for infringement of the patent today, even though no maintenance fees were ever paid.

(c) The deadline for requesting a narrowing reissue of a Canadian patent is the same as the deadline for requesting a broadening reissue.

(d) Proof that an adjudged infringer could have used a non-infringing alternative during the period of infringement may reduce the quantum of damages potentially payable to the patentee.


Snow Toys Inc. jointly developed a new type of ski wax with Slippery Co. The two companies

obtained a patent for the new ski wax formulation, which they co-own; however, they could not

agree on a marketing strategy. Slippery then decided to license a few of Snow Toys’ competitors

to manufacture and sell the ski wax in exchange for royalty payments. Snow Toys is not pleased.

Briefly explain two options Snow Toys has to protect its patent interests, citing case law

authority for each option.

Page 11 of 41



Godzilla Inc. developed an improvement in the manufacture of chemically strengthened glass.

Chemically strengthening glass, which is known, principally involves submersion of glass in a

chemical bath containing potassium ions. The potassium ions replace sodium ions in the glass

surface through ion exchange; this change in composition strengthens the glass. Godzilla’s

improvement, which it patented in Canada, is a new chemical bath formulation that enhances ion

exchange.

Phab Ltd. imports strengthened glass from an offshore supplier for use in its tablet computers

sold in Canada. The supplier uses the chemical bath and preparation method developed by

Godzilla. Neither Phab nor the supplier is licensed or authorized by Godzilla in any way.

Identify two factors that a Canadian court would consider in connection with the Saccharin

doctrine in assessing whether Phab is infringing Godzilla’s patent rights, and briefly explain why

the court would find these factors weigh for or against a finding of infringement. Cite case law

authority.

The following fact pattern applies to Questions B7 and B8:

Halo Co. filed Canadian Patent Application No. 2,XXX,456 on January 3, 2007, claiming

priority to a United States provisional application filed in 2006. The ‘456 Application was laid

open to public inspection on December 3, 2007, and issued to patent on September 12, 2011.

Halo also filed Canadian Patent Application No. 2,XXX,654 on May 23, 2009 as a divisional

application pursuant to section 36(2.1) of the Patent Act. The ‘654 Application also issued to

patent on September 12, 2011.

Horns Inc. has been practising the subject matter claimed in both the ‘456 and ‘654 Patents since

September 12, 2008.

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Identify the start and end dates for which Halo may claim reasonable compensation in respect of

both the ‘456 and ‘654 Patents under section 55(2) of the Patent Act if Halo starts a patent

infringement action today, April 22, 2016. Cite statutory authority to support your selection of

each of the start and end dates; multiple distinct statutory citations are required to fully support a

correct answer.


Halo Co. plans to sue Horns Inc. for infringement of both the ‘456 and ‘654 Patents, and had a

statement of claim issued to that effect in Federal Court. However, Halo just realized that a

priority claim in both patents is missing: the claimed priority date was April 1, 2006, but there

should have been an additional priority claim to January 3, 2006. The error is clearly clerical in

nature. Halo wants to request correction of this under section 8 of the Patent Act before serving

Horns with the statement of claim and making it publicly known that it is starting the lawsuit.

Is Halo’s attempt to correct the priority date likely to succeed? Identify two arguments why or

why not, citing distinct case law authority for each reason.

The following fact pattern applies to Questions B9 and B10:

Your client, an automobile mechanic, spends her weekends scavenging highways with a metal

detector to find weights for balancing wheels, which often fly off cars and trucks during normal

use due to failure of the adhesive fastening the weight to the wheel rim. She cleans off the old

adhesive from the weights, and uses them to balance the wheels on her customers’ cars. To do

this, she applies a new adhesive to the weights, and then affixes them to the wheel rims.

The weights your client has been collecting are made of a zinc-based alloy containing aluminum

and magnesium, as recited in the claims of Canadian Patent No. 2,XXX,434. The inventive

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concept of the ‘434 Patent appears to be the selection of the zinc-based alloy for use as wheel-

balancing weights.

The ‘434 Patent has two claims:

1. A balancing weight for balancing a wheel, comprising:

a weight mass manufactured from a zinc-based material comprising aluminum and magnesium; and

a means for attaching said weight mass to a rim of the wheel.

2. Use of a balancing weight formed of a zinc-based material comprising aluminum and magnesium to balance a wheel.


Based on the above fact pattern, briefly set out an argument why your client is not directly

infringing claim 1 of the ‘434 Patent, citing case law authority.


It turns out that the owner of the ‘434 Patent manufactured and sold the weights with the original

adhesive that your client has been scavenging. Is your client directly infringing either claim of

the ‘434 Patent? Briefly explain why or why not, citing case law authority.

END OF QUESTIONS IN PART B

D1: ‘340 Patent Page 14 of 41


CA 2XXX340 C 2015/12/03

(11)(21) 2 XXX 340

(12) BREVET CANADIEN

CANADIAN PATENT

(13) C

(22) Date de dépôt/Filing Date: 2015/01/25

(41) Mise à la disp. pub./Open to Public Insp.: 2015/07/26

(45) Date de deliverance/Issue Date: 2015/12/03

(72) Inventeurs/Inventors:

BARNABY, VERN, US

CALLAWAY, JANE, US

(73) Propriétaires/Owners:

POOLSHARKS INC., US

[REMAINDER OF COVER PAGE AND ABSTRACT, AND SUMMARY OMITTED]

SWIM FIN

Field of the Invention

[0001] The invention relates to a swim fin. More particularly, the invention relates to a swim fin

with improved angle of attack control and water flow characteristics.

Background

[0002] Swim fins are generally known and typically include a foot pocket and a blade portion. A

desirable feature of a swim fin is that the blade portion of the fin easily attains a correct "angle of

attack" during use. The angle of attack is the relative angle that exists between the actual

alignment of the oncoming flow (i.e., direction of motion of the swimmer) and the lengthwise

alignment of the blade of the fin. A "correct" angle of attack optimizes the conversion of kicking

energy of the swimmer to thrust or propulsion through the water. When this angle is small, the

blade is at a low angle of attack. When this angle is high, the blade is at a high angle of attack.

As the angle of attack increases, the flow collides with the fins attacking surface at a greater

angle. This increases fluid pressure against this surface.

[0003] Conventional fins tend to assume different curvatures or attack angles according to the

direction of movement and the magnitude of the forces applied during use (i.e., the kicking



energy or power). Therefore, it is generally known to design a swim fin to provide a particular

angle of attack for a particular kick power. For example, such known swim fins are typically

designed for either light kicking, medium kicking, or hard kicking.

[0004] One way to design a fin for one of these particular kicking powers is by the composition

of the material (e.g., stiff material for hard kicking, flexible or soft material for light kicking,

etc.). Changing the composition of the material, however, does not efficiently or adequately

control the angle of attack, is difficult to match or "size" to the strength of the swimmer, and

requires the swimmer to use the "prescribed" kicking power for that particular fin. Also, most

existing fins can only reach a compromise in that they are either stiff, soft, or somewhere in

between. When conventional fins are designed for hard kicking (e.g., made of stiff material),

they reach the correct angle of attack when kicked very hard. On a normal, relaxed kick they

don't bend far enough and this negatively affects the performance. Fins of this kind will be

uncomfortable on the legs, strenuous and with poor performance on a relaxed dive. When

conventional fins are designed for light kicking (e.g., made of soft material), they reach the

correct angle of attack when kicked very gently. With a strong kick, such as when swimming in a

current or needing to get up to speed, the blade is overpowered and there is little or no thrust

available. Fins like this might be comfortable on a relaxed dive, but could become unsafe by not

being able to provide the thrust to overcome a slight current. When conventional fins are

somewhere in between, they can be overpowered when kicked very hard, are still uncomfortable

when kicked gently, but cover a wider range of useful kicking power.

[0005] When such known fins are used outside their prescribed kicking power, the angle of

attack tends to be too low or too high. When the fin blade is at an excessively high or low angle

of attack, the flow begins to separate, or detach itself from the low pressure surface of the fin.

This tends to cause the fin to be less efficient. Another problem that occurs at higher angles of

attack is the formation of vortices along the outer side edges of the fin. This tends to cause drag.

Drag becomes greater as the angle of attack is increased. This reduces the ability of the fin to

create a significant difference in pressure between its opposing surfaces for a given angle of

attack, and therefore decreases the power delivered by the fin.



Description of the Drawings

[0006] FIG. 1 is a top perspective view of a swim fin according to an embodiment of the

invention.

[0007] FIG. 2 is a top perspective view of the swim fin of FIG. 1 with the blade flexed

downward.

[0008] FIG. 3 is a bottom perspective view of the swim fin of FIG. 2.

[0009] FIG. 4 is a top perspective view of the swim fin of FIG. 1 with the blade flexed upward.

[0010] FIG. 5 is a top perspective view of a swim fin according to an alternative embodiment.

Detailed Description of the Invention

[0011] Referring to FIG. 1, a pair of swim fins 10 are shown according to a preferred

embodiment. Each fin 10 comprises a foot pocket 12 for receiving a swimmer’s foot, a blade 14,

and biasing system 16 configured to maintain blade 14 at desired angles of attack for a variety or

range of kicking strengths or powers. In some embodiments, biasing system 16 is also an energy

accumulation system, whereby it acts as a means for controlling flexing of the fin 10, as will be

described in more detail below.

[0012] In the illustrated embodiment, foot pocket 12 and blade 14 are fused together to form an

integral structure. Alternatively, foot pocket 12 and blade 14 are integrally molded (e.g., in a

single molding operation). Foot pocket 12 is shown with an open heel and buckles 17 for

attachment of conventional heel straps (shown in FIG. 3). Alternatively, foot pocket 12 includes

a closed heel instead or any of a variety of conventional designs. Foot pocket 12 is formed of a

material having a different stiffness than blade 14. For example, if the preferred material for

blade 14 is stiff, the material for foot pocket 12 may be softer for increased comfort of the diver.

Providing foot pocket 12 and blade 14 having different stiffnesses also helps to ensure that

bending of the fin 10 occurs at a single axis defined along the interface where foot pocket 12 and

blade 14 meet.



[0013] In the illustrated embodiment, blade 14 includes a composite ribbed framework formed

by a portion of blade 14 and at least two longitudinally extending ribs 24, 26. The ribbed

framework is configured to provide stiffness to blade 14 and to channel water flow across fin 10.

The framework includes a plurality of segments shown in the figures as a central or main

segment 18 and two projecting lateral segments 20, 22 defined by a plurality of longitudinally

extending ribs (shown as inner ribs 24 and outer ribs 26) that extend generally along the

longitudinal axis of fin 10. Lateral segments 20, 22 of the blade 14 have leading edges 28 that

slant rearwardly, and are configured to smoothly divide the onflowing water. Inner ribs 24

extend along the sides of foot pocket 12 rearwardly to the end of blade 14, and are configured to

provide structure and rigidity to fin 10. The orientation of the ribs 24, 26 being parallel to the

direction of swimming provides the necessary stiffness to blade 14 by constraining flexing of the

blade 14.

[0014] Alternatively, blade 14 may be made stiff by being produced from a stiff material that

does not flex to any significant extent. In this variation, ribs 24, 26 do not need to be additive to

the stiffness of the blade, and could be made from a flexible material, so long as the composite

ribbed framework can channel water across the fin 10. Alternatively, where blade 14 is made

from a flexible material, blade 14 is provided with its intended stiffness properties by virtue of

particular ribs in the composite ribbed framework.

[0015] Outer ribs 26 extend along a portion of the outer sides of lateral segments 20, 22 of blade

14. Outer ribs 26 are configured to minimize the obstruction to water by being parallel to the

direction of travel with minimal cross section to the flow itself, to prevent energy loss by

reducing “spill-over effect” (as described in more detail below), and to increase performance by

stiffening blade 14 itself. Whereas a conventional fin design allows for a progressive bending of

the entire blade to somewhat accommodate a wider range of kicking powers, the present

invention focuses the bending action around the flexing axis 34, thus maintaining the blade itself

as a rigid and substantially "straight" structure.

[0016] One consequence of a conventional progressively bending blade is also that the angle of

attack progressively varies at different points during a swimmer’s kick, whereas a straight blade

maintains a more constant angle of attack.



[0017] An inner flow channel 30 is defined by inner ribs 24 and the surface of foot pocket 12

and blade 14. Outer flow channels 32 are defined by inner ribs 24, outer ribs 26, and the surface

of foot pocket 12 and/or blade 14. The parallel disposition of inner and outer ribs 24, 26 provides

inner and outer flow channels 30, 32 that are generally uniform along the length of fin 10.

Alternatively, inner and outer flow channels 30, 32 are non-uniform along their length (e.g.,

narrows, broadens, varying, etc.). As the swimmer (or snorkeler or diver) propels her/himself,

water passes along the sides, top and bottom of foot pocket 12. The flowing water need not

traverse ribs interposed in its path as it flows along blade 14. As such, fin 10 is configured to

minimize the resistance to flow and the dissipation of swimmer's energy due to turbulence.

[0018] Blade 14 is relatively rigid or stiff so that flexing substantially occurs about an axis 34 at

a particular region of fin 10. As such, blade 14 remains essentially flat during use and provides a

regular planar surface to interact with the water flow. Preferably, inner and/or outer ribs 24, 26

are configured to provide additional support and rigidity to blade 14. By maintaining a

substantially flat blade 14, the angle of attack is optimized along substantially the entire length of

blade 14 (e.g., providing substantially a single angle of attack), and not merely at one location (as

is the case with a relatively flexible blade which tends to have a continuously varying angle of

attack).

[0019] Biasing system 16 is configured to provide an optimum angle of attack for a variety or

range of kicking powers. By controlling the angle of attack, biasing system 16 is configured to

increase performance and efficiency of fin 10 by converting a higher percentage of the kick

energy into thrust. In practice, the optimum angle of attack would be slightly variable as the

reaction of the fin to a swimmer’s kick lags slightly. The optimum angle of attack is designed to

have a tolerance of +/- 3 degrees.

[0020] Biasing system 16 gradually increases the resistance to flexing or bending of fin 10 as a

function of the degree of bending itself. The difference between a soft kick and a hard kick is the

amount of effort provided by the swimmer and the energy transferred from the leg to the fin and

from there to the water. Typically the harder the kick, the more energy transferred to fin 10, and

the more fin 10 wants to bend. Biasing system 16 will bend fin 10 within a range of angles of

attack defined by the optimum angle and its tolerance, under a wide range of loads (i.e., kick



strengths or powers). As such, the angle of attack is configured to not significantly vary under

differing load conditions (e.g., between a soft kick and a hard kick).

[0021] Biasing system 16 may also act as a means for controlling flexing of the fin 10 by

providing for the concentration and storage of the difference in energy between a soft and a hard

kick in the biasing element 16 of fin 10. These particular sections will at first accumulate the

excess energy and later on release it and transfer it to the water for a high efficiency forward

thrust. This energy accumulation is achieved with a small change in degree of bending of fin 10,

so when fin 10 is kicked gently, it approaches the optimal angle of attack, and when kicked

harder, the angle of attack is increased only slightly (but remains near the optimum angle of

attack) as biasing system 16 absorbs and/or stores the additional energy. The slight increase in

the angles of attack is typically capped at 10 degrees.

[0022] To provide for the energy accumulation system, biasing system 16 may include one or

more sinusoidally-shaped biasing ribs as an extension of the inner ribs 24, connecting the inner

ribs 24 to the foot pocket and positioned proximate flexing axis 34. As shown in FIGS. 2-4,

flexing axis 34 is located in the portion of fin 10 that connects foot pocket 12 with the blade 14

(e.g., upper biasing ribs 38 on top portion of fin 10, and lower biasing ribs 40 on bottom portion

of fin 10), and biasing system 16 spans flexing axis 34 longitudinally, so that biasing system 16

can regulate the angle formed between the foot pocket 12 and the blade 14

[0023] The sinusoidal ribs may also be made of a stiff enough material that they deform and act

as a restricting system to restrict bending of the fin, but do not stretch/compress to a large enough

extent to store energy and control flexing of the fin. These variations may be beneficial for

swimmers with previous ankle injuries, which may be aggravated by the snapping back action.

[0024] Upper and lower sinusoidal ribs 38, 40 provide a spring constant, which is defined by the

period, amplitude, material, wall thickness, and the like of upper and lower ribs 38, 40. This

spring constant is constant and "tuned" to provide a particular desired performance. According to

a particularly preferred embodiment, the period or wavelength of upper and lower ribs 38, 40, is

about one inch and has a wall thickness of about 0.3 inches at its base and tapers to about 0.15

inches at its top. According to an alternative embodiment, biasing system 16 is configured to



provide a variable spring constant (e.g., by varying the period, frequency, or the like at various

portions of biasing system 16).

[0025] Referring to FIG. 1 in a non-stressed configuration, upper and lower ribs 38, 40 are

"neutral" (i.e., unstressed, not biased, unstrained, etc.). A downward kick (a horizontally

swimming diver that kicks downwards) bends fin 10 at flexing axis 34 to blade 14 upwards.

Referring to FIG. 2 when fin 10 bends under the action of the kick, upper ribs 38 on the top of

foot pocket 12 tend to stretch due to the bending action. Similarly, lower ribs 40 on the bottom

tend to compress, as shown in FIG. 3. When the kick is reversed (as shown in FIG. 4), the upper

ribs 38 reverse the role with the lower ribs 40 and the whole process repeats symmetrically.

According to an alternative embodiment, sinusoidally-shaped upper and lower ribs 38, 40 are

located on only one side of the fin (e.g., the side that typically provides the most thrust).

[0026] Upper and lower ribs 38, 40 may also be made from a material which is more elastic than

the blade itself such that the more the ribs 38, 40 stretch, the more resistance there is. As such,

the more fin 10 wants to bend, the higher the resistance given by the stretching upper ribs 38.

Similarly, as bending of fin 10 increases, lower ribs 40 tend to compress more and will

increasingly resist this compression. By deforming upper and lower ribs 38, 40 the energy is

being spent to deform these sections of fin 10 rather than flexing fin 10 past its optimum angle of

attack. This energy is stored within the fin structure itself (elastic deformation of upper and lower

ribs 38, 40). By adjusting the size, shape and material used for upper and lower ribs 38, 40, the

amount of energy stored in these upper and lower ribs 38, 40 and the angle of attack attained

under soft and hard kicks can be controlled. In addition to controlling the angle of attack (which

in itself increases efficiency), sinusoidal-shaped ribs 38, 40 have the added benefit of storing

energy in upper and lower ribs 38, 40 during the alternating stretching and compression

repetitions such that energy is returned at the end of the kick in the form of snapping back of

blade 14. This snap has been observed as playing a significant role in increasing the efficiency of

a diving fin by providing additional thrust to the swimmer.

[0027] Ribs 38, 40 are configured to allow fin 10 to efficiently attain an initial angle of attack

with minimal effort. In contrast, in conventional designs, these ribs are straight such that upon

first bending the stretched fibers would immediately commence to pull hard, whereas the



compressed fibers would tend to buckle because of excess material not knowing where to flow.

By incorporating biasing system 16, blade 14 can be made generally stiff, yet still reaches a good

angle of attack under various loads.

[0028] According to an alternative embodiment shown in FIG. 5, at least one restricting member

in the form of non-arcuate ribs 44 is provided, which comprise alternating, traversing linear

segments (e.g., non-arcuate) formed from a relatively stiff material. The embodiment of FIG. 5

tends to limit the blade to a single optimum angle of attack, but does not have the additional

benefits of controlling flexing of the fin in a tuned manner, as is possible with the sinusoidal

biasing system of FIG. 1. However, the embodiment of FIG. 5 is more cost effective to

manufacture and provides for a specifically defined, single angle of attack that is beneficial for

beginner swimmers learning proper flutter kick technique by not providing the snapping back

action of the sinusoidal ribs.

[0029] According to yet other alternative embodiments, upper and lower ribs 38, 40 are any of a

variety of biasing designs (e.g., springs), dimensions, configurations, and orientations. In one of

these alternative embodiments, the ribs take the form of substantially straight, non-arcuate

members which deform in expansion and contraction by virtue of their material properties. In

this alternative embodiment, the material of the ribs is selected so that in expansion, the ribs do

not expand beyond their elastic limit and become permanently deformed.

[0030] One source of energy loss in kicking a fin is the amount of water that (during the

movement of fin 10 through the water) instead of being pushed back by blade 14, "spills over"

the sides of blade 14. Such "spillover" is typically caused by high pressure fluid on one side of

blade 14 spilling over the side of blade 14 to the low pressure side. The difference in pressure

multiplied by the cross-sectional area of blade 14 provides the thrust that pushes the swimmer

forward. As such, spillover reduces the amount of thrust generated by fin 10. According to a

preferred embodiment, spillover is reduced by having a stiffer blade, controlling flexing of fin 10

by biasing system 16, providing inner and outer flow channels 30, 32 for improved water flow,

and providing outer ribs 26 with a profile better designed to retain water in inner and outer flow

channels 30, 32.



[0031] According to an exemplary embodiment, outer channels 32 are configured to channel

water across blade 14 and reduce spillover. According to a preferred embodiment, the surface on

either side of foot pocket 12 presents a reduced or minimal cross section to the water so a

reduced minimal resistance to its flow over it. As shown in FIG. 1, outer ribs 22 do not directly

join to the foot pocket 12, thereby an "inlet" 42 is formed at the upstream end of outer channel 32

to allow water to flow into channels 32. By providing inlet 42 with reduced cross-section,

destruction and disruption to the water flowing into and through outer channels 32 are reduced,

turbulence and spillover are reduced, and laminar flow is increased.

[0032] Also, outer ribs 26 project from blade 14 further than conventional designs. Preferably,

outer ribs 26 extend from blade 14 at least about 1/4 inches. According to a particularly preferred

embodiment, outer ribs 26 extend from blade 14 between about 1/2 inch and about 1 inch.

Alternatively, the ribs extend from blade 14 by an amount appropriate to reduce spill over effects

for the swimming style. As such, outer ribs 26 have the function of limiting the "escape" of high-

pressure flow (under the fin 10) around the sides of blade 14 to the area of low pressure (over the

fin 10).

[0033] It is also important to note that the construction and arrangement of the elements of the

swim fin with improved angle of attack and water flow characteristics as shown in the preferred

and other exemplary embodiments are illustrative only. Although only a few embodiments of the

present invention have been described in detail in this disclosure, those skilled in the art who

review this disclosure will readily appreciate that many modifications are possible (e.g.,

variations in sizes, dimensions, structures, shapes and proportions of the various elements, values

of parameters, mounting arrangements, materials, colours, orientations, etc.) without materially

departing from the novel teachings and advantages of the subject matter recited in the claims. For

example, the energy accumulations may have any of a variety of shapes or configuration. Also,

blade 14 may take a variety of shapes and forms and still incorporate the advantages of the

biasing system, provided the features of the biasing system as herein described are still provided,

and flexing of the fin occurs at an axis at the intersection of the foot pocket and the blade, such

that the blade maintains a relatively constant angle of attack. Accordingly, all such modifications

are intended to be included within the scope of the present invention as defined in the appended

claims.



Claims

1. A swim fin comprising:

a foot pocket located at a first end and adapted to receive a foot of the swimmer;

a blade extending from the foot pocket toward a second end and including a composite

ribbed framework and,

at least one restricting member configured to maintain the blade at a desired angle of

attack for a variety of kicking strengths.

2. The fin according to claim 1, wherein the at least one restricting member comprises at least

one biasing rib configured to deform as the fin bends and alternately extend between a right side

and a left side.

3. The fin according to claim 1 wherein at least a portion of the at least one biasing rib spans an

axis where the flexing of the fin substantially occurs.

4. The fin according to claim 3 wherein the axis is at the interface of the blade and foot pocket.

5. The fin according to claim 1 or claim 3, further comprising at least one flow channel defined

by the blade, and one or both of an outer rib extending from the blade and an inner rib extending

from the blade.

6. The fin according to claim 5 wherein the at least one flow channel includes an inlet defined by

the outer rib, the inner rib, and a leading edge, the leading edge extending between the foot

pocket and the outer rib, and configured to provide substantially laminar flow of water through

the flow channel.

7. The fin according to claim 2, wherein said at least one biasing rib includes at least one biasing

rib on a top side of the swim fin and at least one biasing rib on a bottom side of the swim fin.



8. A fin for use by a swimmer comprising:

a foot pocket located at an end and adapted to receive a foot of the swimmer;

a blade extending from the foot pocket; and,

means for controlling flexing of the fin.

9. The fin of claim 8, wherein said means for controlling includes one or more ribs having a

sinusoidal waveform.

10. The fin according to claim 8, further comprising at least one flow channel defined by the

blade, and one or both of an outer rib extending from the blade and an inner rib extending from

the blade.











D2: The Flutter Kicks Co. Page 30 of 41


THE FLUTTER KICKS CO. SWIM FIN 1

The Flutter Kicks Co. Swim Fin is illustrated generally in FIGS. 1 and 2 of D2. FIG. 1 shows a 2

swimming flipper 5 having a shoe portion 1, provided with heel belt 101 connected to buckles 3

201. The flipper includes blade portion 2, along whose lateral rims there are outer protrusions 4

102 going up along a substantial portion of the shoe portion 1. The protrusions 102 are 5

symmetrical about a centreline (not shown) of the swimming flipper, and their height decreases 6

towards the free ends of the blade. On both protrusions 102, narrowed portions 112, 122 are 7

provided on the top and bottom surfaces of the blade 2 and proximate the shoe portion 1. The 8

narrowed portions 112, 122 are substantially V-shaped and have a blunted vortex. The top and 9

bottom surfaces of the blade include a plurality of ribs, which in combination with the material 10

of the blade, lead to a substantially stiff or rigid blade. The plurality of ribs are typically no more 11

than 2 mm in height. 12

The top portion 132 of the protrusions 102 are rounded to provide for better water flow around 13

the perimeter of the swimming flipper. 14

Flex control blocks 202 and 302 are provided on the top and bottom surfaces of the swimming 15

flipper, in an area proximate the narrowed portions 112, 122. There may be any number of flex 16

control blocks 202 and 302, provided they are aligned along a single axis of the swimming 17

flipper. The blocks 202, 302 include flat surfaces 212, 312 located opposite from each other and 18

incline at a given angle with respect to the plane of the blade 2. 19

Flex control blocks 202 and 302 provide a limit to the degree of bending the blade portion can 20

undergo with respect to the shoe portion. As the blade bends or flexes with respect to the shoe, 21

the flat surfaces 212, 312 of the blocks 202, 302 compress towards each other until they are in 22

contact with each other, at which point the blade is at an optimal attack angle. Accordingly, the 23

degree to which the blade bends with respect to the foot portion can be limited by the distance 24

between the blocks 202, 302 and the angle of incline of the flat surfaces 212, 312. The flex 25

control blocks on the top surface of the blade are always in a different state than those on the 26

bottom surface of the blade, so that the optimal attack angle is maintained regardless of an 27

upward or downward kick. These features are fine tuned to optimize the angle of attack for the 28

type of swimmer using the fins. As an added feature, the flex control blocks are attachable and 29



detachable with the blade and are thus readily substitutable by a user for ones with different 1

properties so that as a user’s swimming capabilities progress, the flex control blocks can be 2

swapped out to alter the desired angle of attack. 3

As shown in FIG. 2, the apex of the narrowed portions 112 on the top surface of the blade and 4

the apex of the narrowed portions 122 on the bottom surface of the blade are offset from each 5

other by a distance “d”. 6

The narrowed portions 112, 122 force the blade to bend in the area of the offset distance “d”. 7

This bending area “d” is designed to define a bending region larger than a single-line axis 8

ensuring a better resistance to the bending load, and leading to increased life of the flipper. The 9

distance “d” is selected to be between a minimum value, greater than 0 to avoid a single line 10

bending axis, and a maximum value, above which the bending area would be too wide, and 11

advantages of the fin mitigated. 12



FIGURES – D2

5



D3: Hydrospeed Inc. Page 34 of 41


HYDROSPEED INC. SWIM FIN 1

The Hydrospeed Inc. swim fin SF is illustrated in FIGS. 1-4 of D3. FIG. 1 shows the swim-fin 2

including a shoe portion A connected to a blade B, and stiffened by longitudinal ribs C along the 3

outer side perimeter of each side of the swim-fin (while only one side is shown, the swim-fin is 4

symmetrical). 5

FIG. 2 is a sectional view taken along the line Y-Y in FIG. 1 and shows the longitudinal ribs C 6

forming a housing sheath within which a stiffening rib D is provided. 7

FIG. 3 is a sectional view taken along the line X-X in FIG. 1, and shows the longitudinal ribs C 8

extending most of the way along blade B. 9

FIG. 4 is a side view of the stiffening rib D at an extreme position of a swimmer’s kick. 10

FIG. 5 is a perspective view of the fin in use. 11

The blade B has a pair of longitudinal ribs C extending along its outer side perimeter. The 12

longitudinal ribs C house stiffening ribs D therewithin. The dashed lines shown in FIG. 1 13

illustrate a sheath within which stiffening ribs D are housed. 14

The top and bottom surfaces of the blade B are flat, and have no additional ribbing or surface 15

features thereon. This aids in the smooth flow of water across the swim fin, as water is 16

channeled between the longitudinal ribs C, and along the surface of the blade B, encouraging 17

laminar flow during the streamlined, or gliding portion of a swimming stroke. 18

The stiffening rib D is formed with slots or cut outs E, so that it will bend easily until the slots 19

have closed up on one side as illustrated in FIG. 4, after which their flexible resistance increases 20

sharply. The design of slots E lead to bending of the fin always occurring about the midpoint of 21

the group of slots E. This provides the advantage that both weak and strong swimmers will bend 22

a fin to the correct extent, and then in both cases the fin will strongly resist any further bending. 23

Slots E limit the degree of bending in the fin to within a predetermined range. In addition, the 24

accordion-like structure stores potential energy when opposing the direction in which a 25

swimmer’s leg is moving, which is converted to kinetic energy as the direction of the kick is 26

changed. This additional energy provides a boost to the swimmer’s kick serving the dual 27



purpose of increasing the range of motion of the swimmer’s leg, leading to more water being 1

moved by the kick and adding propulsion to the kick. This effect is most visible in FIG. 4, which 2

shows the stiffening rib D at an extreme position of a swimmer’s kick. As the slots E on the top 3

side of the rib D begin to close (with a change in kick direction), the slots E on the bottom side of 4

the rib D open, leading to energy transfer from the bottom side of the rib D to the top side, which 5

aids the kick as discussed above. 6

Rib D is made of polypropylene which can be flexed without generating fatigue. 7



SF

FIGURES – D3



Page 38 of 41


Duplicate ‘340 Patent Claims (Copy 1)









and a left side.






from the blade.




the flow channel.



Page 39 of 41










the blade.

Page 40 of 41


Duplicate ‘340 Patent Claims (Copy 2)









and a left side.






from the blade.




the flow channel.



Page 41 of 41










the blade.

END OF PAPER D