Gasaway                                                                                                                                                     Fall, 1999

 Gerald Gadfly (G) thoroughly disliked the common house fly, and he frequently thought about how to eliminate them from the face of the earth.  An additional incentive for inventors working in the field was a reward offered by a rich old philanthropist who also hated flies.  He promised to pay $1 million to the first person to patent a serious advance over the ordinary fly swatter.  In an effort to develop such an improvement and capture the reward, in mid-1995(G) came up with an idea to facilitate the elimination of flies and other flying insects but which also would provide fun for the whole family. The result was the mechanical fly gun.

 (G) worked alone in his basement for several months before developing a workable combination.  He often talked to his wife about his work as he tried many types of disks and trigger mechanisms before building a working model on August 10, 1996.  His wife tried the device and was delighted with it.  The prior art taught that using a gun-like mechanism for smushing flies was not an effective eradication method:  (G)'s device proved to the contrary.  He continued to tinker with the device to perfect it and finally applied for a patent on October 6, 1997.

 The fly gun worked exactly as one would assume.  It shoots a flat disk that remains attached to the gun by a tube; the disk strikes insects that light on walls, tables and other flat surfaces.  When the operator aims at a stationary fly and pulls the trigger, the disk is released rapidly and smashes the fly against the flat surface.  (Presto, frisbee fly!)

 When the fly gun was demonstrated at an exterminators trade show in November 1997, it was an instant success.  Immediately after the show, (G) began to sell the fly gun, and local fly shooting contests sprang up across the country.  Although such contests never overtook skeet shooting in popularity, its devotees were quite passionate.  The patent issued on January 10, 1999.   The claims follow:
 

      FLY GUN

I Claim:

1. A device for exterminating insects comprising:

 a.  a projectile, and
 b. a firing mechanism.

2. The device in claim 1 wherein said firing mechanism consists of:

 a. a length of tube,
 b. a spring inside said length of tube,
 c. a handle to which said length of tube is attached,
 d. a cocking mechanism to compress said spring inside said length of tube, and
 e. a triggering mechanism to release said compressed spring

3. The device in claim 1 wherein said projectile consists of:

 a. a flat striking surface which is circular, and
b. a rod attached perpendicular to said striking surface, the outside diameter of said
rod being such as to fit inside said length of tube on said firing mechanism

 When Helen Hobart (H) saw the fly gun for sale at Walmart, she realized that she also had invented a fly gun several years before.  She immediately contacted the Patent and Trademark Office (PTO) and reported the following facts.  (H) thought about the problem for several weeks after she learned of the reward available for an improvement to a fly swatter.  She developed an idea for a gun that would shoot a tiny retrievable flat disk at flies on March 26, 1995.  (H) was  extremely busy for the remainder of that year except when she was on vacation for six months in the Orient, so she did not work on the invention for almost a year.  She returned to the device thereafter, and in early 1998 she completed the mechanical drawings and hired a manufacturing company to build the device.  (H) received a prototype of the fly gun from the company on December 7, 1998.  She promptly stored the device in her "invention closet."

 (G) recently saw that a competitor, Jeremiah (J), was manufacturing and selling a similar fly gun.  As (G)'s attorney you wrote to (J) indicating that its action constituted infringement of a valid U.S. patent.  (J) responded that their activity did not constitute infringement because the devices were not identical, and if it did, (G)'s patent was invalid because of prior art and because (G) was dishonest in the patent application and deliberately concealed from the PTO  the ideal size and thickness of the disk.  (Neither the drawing nor the specifications made clear the size and thickness of the disk).

 The prior art raised by (J) include the following:

1. In 1924 Klingle (K) was issued a patent on a sling shot-style insect eradicator.  (The operator hurled little two-inch flat stones or disks at insects from the slingshot).

2. The concept of using a gun-like device for smashing mosquitoes was discussed in an article on unique ways to eliminate insects published in the December 1997 issue of Insect Eradication Monthly.

3. A scientific paper presented at the World Conference on Annoying Insects in Rio de Janeiro in September 1997, discussed the feasibility of arming people with insect elimination devices for squashing bugs.  Among the devices mentioned was a fly gun.

 Discuss the issues facing (G) concerning patentability, priority and infringement.  Discuss any remedies available to (G) should he be successful in his infringement against (J).  Discuss any defenses (J) might have.

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The Cherokee Indians reached a high cultural level under such leaders as John Ross and Sequoya.  Sequoya invented a system of writing the Cherokee language that enabled the tribes to be among the first literate Indians.  The humorist Will Rogers was part Cherokee.  The history of the Cherokee Indians tells a story of their lives as farmers in the Southern Appalachian mountains where they defended their lands against the colonists.  When gold was discovered on their lands, the U.S. Government forced them to sell their lands, and in the winter of 1838-39 they marched on the Trail of Tears losing thousands of their people along the way to settle in what is now Oklahoma.
 
 

In the spring of 1998, elections were held and Principal Chief of the Cherokee Nation, Chad “Corntassle” Smith, was elected.  During the sacred ritual ceremonies installing the principal chief, the great chiefs gathered around the burning council fire, smoked the sacred calumet, and listened to words of wisdom from their beloved prophets whose words were recorded in the tribal history.  The tribes rendered a series of chants based on the Cherokee creation myth and the history of the tribe.  The 16 ritual songs held sacred by the tribe and have been passed from generation to generation.  At several points, the Principal Chief was joined in the song by the tribal council.  Taken as a whole, the songs constitute an epic performance that takes more than four hours to complete.  The last hour includes the most melodious examples of Cherokee music.  The songs, sung with the tribal council, are in an eight-part harmony.  The songs are serious and apologetic in quality remembering all that the tribes endured to maintain the Nation.  The sheet music for the 16 songs was produced for the installation ceremony to assist younger tribe members who might not know the songs from the oral tradition.

Because of earlier election fraud, the spring 1998 elections were observed by representatives from the Carter Center.  Wanting to encourage a greater sense of openness, the tribal council permitted outsiders to observe the elections for the first time.  As a follow up, OK TV (TV) News, the public television station in Oklahoma, taped and broadcast the last hour of the four-hour installation ceremony.

Jana Alexander (A), a teacher in Tahlequah, OK, home of the Cherokee Nation, videotaped the news segment to use in the fall semester to teach her fourth grade a unit on Native American culture, particularly the language and arts of the Cherokees.

Chief Smith was extraordinarily proud when he learned that the Clark Museum of the Cherokees (C), a privately owned museum, had included his singing/chanting on a CD released in 1999 celebrating Native Americans produced in honor or the opening of the Museum.  (C) registered the copyright on the CD with the U.S. Copyright Office.  He was not so happy to learn that the museum advertised the opening with a poster featuring Chief Smith's likeness which would also be available on tote bags and calendars from the museum store.  He was surprised when he learned that one of their sacred chants had been appropriated by Sting (S), a contemporary rock artist whose CD The Rites of Summer reached the top of the European charts in mid-spring 1999.  The title cut with the same name is a rendition of one of the chants; however, it is performed as a joyful, thankful song.  This cut is the initial emphasis track in the United States as well as Europe.  Sting included it as part of the repertoire in his 18-month tour that began in March 1999 as well as in other promotional efforts including a video.

The International Olympic Committee (IOC) intends to promote a rendition of the same song as a theme of the 2000 summer Olympics.  At the opening ceremonies, the song will be sung by the United Nations Children’s Choir (UNCC) and their performance fees will be donated to the United Nations Children’s Fund.  The song is available on the IOC home page, both the Cherokee lyrics and the choir's performance of the song.

None of the uses of the songs or photographs were with the knowledge or permission of Chief Smith or the Cherokee Nation.

The chief consults with you to assert his interests and those of the Cherokee Nation with the various problems these facts highlight.  Please advise him about any causes of action he might have against (TV), (A), (C,) (S), (IOC) and (UNCC).  Include any remedies he might have and any defenses these parties might raise.