Snowboard companies in patent dispute

Tracey and Tim Canaday of Never Summer. Never Summer

In September, after two and a half years of waiting, Denver, Colo.-based snowboard manufacturer Never Summer was awarded a patent on a radical board design that incorporates reverse camber, or rocker, underfoot and traditional camber between the binding mounts and the respective tip and tail. The contour is so unique that one rival board builder refers to it as "a McDonald's Golden Arch popping a wheelie."

Never Summer owners Tim and Tracey Canaday didn't have long to celebrate their patent, however. Two months later, the brothers found themselves embroiled in a controversy stemming from the claims of another, much larger manufacturer: Mervin, based in Washington state.

Mervin had submitted a patent application roughly one year prior to Never Summer's application, and in patent disputes, two things matter more than anything else: when you submit your application and, most important, what is contained in the lone "independent claim" that anchors your request.

Mervin had time on its side, but it failed to mention camber in its independent claim. Instead, "planer" is used to describe the surface where the board extends from the rocker toward its tip and tail. Never Summer, on the other hand, does use "camber" to describe its design; the Canadays have since taken to calling the patented contour "rocker-camber," or R.C.

Sounds black and white, right? Even Mike Olson, one of Mervin's founders and a widely respected innovator, believes it's black and white. "I keep hearing it presented as a gray issue," he said. "It's not."

Except Olson believes Mervin is in the right, and that Never Summer's patent never should have been granted due to its lack of "novelty," which is required of any patent.

The dispute has pitted two pairs of pioneering snowboarders against each other in an awkward spat with no judgment in sight, be it legal or in terms of street cred. Their lack of a relationship is strange in such a small industry: Though they spoke once on the phone in 2008, Olson and co-founder Pete Saari have never met the Canadays -- unusual given they've all been building boards in the West since the early '80s and sometimes have booths a stone's throw from each other at trade shows.

Neither side is backing down, at least not yet.

"From what we've read and heard, it sounds like Never Summer has their panties in a bunch and thinks they are in some sort of conflict," Olson wrote in an e-mail.

"As far as tension between Mervin and us, it's coming from them," Tim Canaday said.

In some respects, the feud is like pitting a dinosaur against a lizard: One company, Mervin, is an industry heavyweight owned by Quiksilver that constructs 216 snowboard models between three brands -- Lib Tech, Gnu and Roxy. The other, Never Summer, has remained family owned for two decades and builds 15 models, every one of which now features rocker-camber.

Lest one forget, snowboards have been rockered for 30 years, only back then, the rocker extended the length of the board, like a crescent moon. That design lost its functionality once snowboarders were allowed to ride hardpacked resorts, necessitating a cambered board to hold an edge.

Soon after Mervin's revolutionary, rockered-underfoot Skate Banana debuted in January 2007 (ironically, to a trade show full of doubters), the sport changed. Second-generation riders realized rocker performed far better in powder, and they spent their money accordingly. According to SnowSports Industries of America, whereas only six percent of snowboard sales revenue that winter came from rockered boards, the number grew to 37 percent three seasons later.

Never Summer saw that coming thanks to the Banana, a "rocker to flat" design covered by Mervin's patent that kept selling out. But the Canaday brothers still thought they could improve on the design based on what they were told. "We got from our retailers that it was a very good selling board," Tim Canaday said, "but the one thing we kept hearing was that it wasn't a stable board."

By adding camber on either side of the rockered section, they figured they'd solve that problem. And they did. People loved it. So they patented it.

However, Olson and Saari contend that Mervin had already been making rocker-camber boards as far back as the '80s. In fact, by the time Never Summer initiated its patent process, Olson said, Mervin had more than 50 rocker-camber Bananas in its line. They just weren't marketing them as such -- not a single magazine ad mentioned rocker-camber.

Why not? According to Olson, Mervin's patented, squiggly-rail Magne Traction had proved so difficult for the public to digest that he and Saari -- two proven marketing geniuses -- figured they'd keep it simple with the Banana and leave camber out of their wording. "You don't want to confuse the public," Olson explained.

When told that, Canaday responded: "That's suspect. He thinks the public is pretty ignorant with that statement. I mean, come on, dude."

By the time Olson and Canaday spoke for three hours in 2008, news of Never Summer's patent application had begun to circulate. "Mike even said in our conversation that they wished they'd added camber into their patent claim," Canaday recalled. Olson, who told Canaday he was "dancing a fine line," remembered talking about camber but not in that context.

As it is, the relevance of their debate has yet to be determined. The retail gossip circles are buzzing, but patents are extremely difficult to enforce when it comes to ski and snowboard designs. They're also costly, draining and dangerous, in that a company can be viewed as a bully.

It would be hard to imagine a manufacturer as small as Never Summer being viewed that way, but it's on the owners' minds. "We only patented our design to legitimize it," Tim Canaday said. "We don't want to be seen as the jerks of the industry."

"I'm sure they're not going to challenge anyone," Olson said. "If they tried, it wouldn't hold any weight."

Canaday said he and his brother believe "a handful" of companies sell models that infringe on their patent. They still haven't decided whether to take action, but "our lawyers feel very, very confident that we have an enforceable patent."