I’m not frothing at the mouth about Arnold’s signing of the microstamping bill, because — as mentioned in Tuesday’s Quote of the Day post — it appears the Democrats got pwned when somebody inserted some killer language requiring the microstamping technology to be “unencumbered” by patents.
What does this mean? It means the bill may never be implemented — and at worst, it can’t be implemented for 15 years! Gene Hoffman, uber-guru of Calguns, tells it:
The only way for AB-1471 to take effect is for the DOJ BoF [California Dept. of Justice — Bureau of Firearms] to promulgate an enabling regulation through the APA [California’s Administrative Procedure Act] via the OAL [Office of Administrative Laws].
To get through the OAL, the rulemaking must not conflict with the statute. The statute makes it clear that the rulemaking must set rules that allow handgun manufacturers to comply without patent encumbrance. Unless and until that rulemaking is final, new guns can and will be added to the safe list using the pre-existing criteria.
The rulemaking is key and knowing what I do of patent law and business realities, I don’t see BoF being able to implement a compliant rulemaking to implement 1471 until after Lizotte’s patents expire.
—Gene Hoffman [bracketed items mine, not Gene’s.]
The patents expire 15 years from now. So a bill intended to take effect in 2010 won’t be able to be implemented until 2023! That’s a legislative maneuver worthy of Robert Moses in his prime!
Who snuck that language in? According to Gene in post #43 of this thread, the language was inserted “by a TLA [three-letter acronym] we all know and love (or hate if we can’t read between the lines).” NRA? ILA? GOA? GOC? I assume that the behind-the-scenes heroes who snuck that in must retain their anonymity in order to remain effective in California politics. Nevertheless, I’ll salute them, whoever they are! (I suspect I might already be a Life Member of that organization, but perhaps I’ll never know for sure.).
UPDATE: I’m now pretty sure Gene meant the language was accidentally inserted by a three-letter organization like, say the BoF– certainly capable of shooting themselves in the foot with bad bill drafting — in which case, I’ll just give them a big ol’ cheery middle finger!
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And Arnie did throw us a bone by signing the Katrina-inspired AB-1645 preventing gun confiscations by the State in an emergency. So all in all, I’ll head to the sunny range this week still whistling a happy tune.
OK, that’s better news than I’d heard yesterday, but I’m still pissed at him for signing it. And the frikken lead ban.
Hm, that does, indeed, give me a slightly better warm and fuzzy… Of course, they have two years to amend the law, or find some other manner of workaround.
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Before you go all gaga over this 15-year so-called “poison pill” in the legislation, remember that all Kali has to do here is buy up the patents and do their thing.
The State has a bazillion dollars to do just that, and they WILL do that if they are severely pimped in the blogs and the GFWs take notice of it.
I can’t see getting upset over this bill anyway. It basically mandates something that any competent gun owner can get around in any of 20 different ways, and any competent gunmaker can also get around (by supplying a plain firing pin and making sure that their owner’s manual includes instructions for changing out the firing pin).
Let’s not lose our focus on REAL Kali 2A impediments, such as no CHLs, etc.
Good catch, but actually, that was the subject of some discussion among Calguns folks with lots of legal expertise in the intellectual-property field, and we’re covered here too. It appears that the use of the specific word “encumbered” (as opposed to other terms of art) means that simply selling it to California wouldn’t work. The technology would still be encumbered by a patent. The patent-holder’s intent is irrelevant. California will have to wait for it to expire. Trying to do otherwise will cost the state a whole lot of money in an IP suit that they’re unlikely to fund.
Again, this was done by somebody either extremely clever or extremely stupid. Sure wish I knew who….
David, are you sure that there’s no process to withdraw a patent? Seems to me I have heard of that being done. Kalifornistan is the land of Ten Million Lawyers, and I’d have to follow a barrister friend’s admonition that “there is no contract made that can’t be dissolved”.
I STILL say don’t put overmuch faith in this poison pill tactic.
You could abandon a patent. But the fellow who’s developed this thing seems very interested in making lots of money from it. He’s apparently said something about offering the technology free of charge to California (which, as mentioned above, wouldn’t work under the statute), but still intends to get rich from the royalties he’d collect from the gun manufacturers.
I haven’t posted about it yet, but the Calguns folks, and Gene Hoffman in particular, have just recently used California’s APA and the OAL to force the BoF and DOJ to give up on their attempts to label Saigas and Off-List-Lowers as prohibited “assault weapons,” with a major statement by AG Jerry Brown to that effect.
I’m not an IP attorney, but these guys do seem to know what they’re talking about on this topic.
Note: post updated, based on further Calguns discussion I’m now pretty sure this wasn’t a clever legislative maneuver but rather a really bad mistake by the bill drafters.