[hoffmang]

There is a lot of quite justified unhappiness with AB-1471 but the sky may not have fallen as badly as everyone here is worried about. Let's look at the actual text of the law:

Here is the full text.

(7) Commencing January 1, 2010, for all semiautomatic pistols that are not already listed on the roster pursuant to Section 12131, it is not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired, provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. The Attorney General may also approve a method of equal or greater reliability and effectiveness in identifying the specific serial number of a firearm from spent cartridge casings discharged by that firearm than that which is set forth in this paragraph, to be thereafter required as otherwise set forth by this paragraph where the Attorney General certifies that this new method is also unencumbered by any patent restrictions. Approval by the Attorney General shall include notice of that fact via regulations adopted by the Attorney General for purposes of implementing that method for purposes of this paragraph. The microscopic array of characters required by this section shall not be considered the name of the maker, model, manufacturer's number, or other mark of identification, including any distinguishing number or mark assigned by the Department of Justice, within the meaning of Sections 12090 and 12094.

There are lots of things to note. First, note that all guns that are on the safe list up until the earlier of 2010 or the AG certifying some technology are eligible to remain on the safe list indefinitely.

Commencing January 1, 2010, for all semiautomatic pistols that are not already listed on the roster pursuant to Section 12131...

Second, filing off your microstamp or replacing parts that microstamp with parts that don't microstamp is not illegal. That's this section:

The microscopic array of characters required by this section shall not be considered the name of the maker, model, manufacturer's number, or other mark of identification, including any distinguishing number or mark assigned by the Department of Justice, within the meaning of Sections 12090 and 12094.

But here is the most interesting part:

...provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions. The Attorney General may also approve a method of equal or greater reliability and effectiveness in identifying the specific serial number of a firearm from spent cartridge casings discharged by that firearm than that which is set forth in this paragraph, to be thereafter required as otherwise set forth by this paragraph where the Attorney General certifies that this new method is also unencumbered by any patent restrictions. Approval by the Attorney General shall include notice of that fact via regulations adopted by the Attorney General for purposes of implementing that method for purposes of this paragraph.

What that means is that whatever technology gets adopted has to go through an APA (Administrative Procedures Act) compliant process with the OAL - just like the magazine "permanence/capacity to accept" stuff that we so successfully beat in the last couple of years.

Now what is really interesting is the line "provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions." Right now one company (ID Dynamics) claims the patents (7111423 and 6886284 amongst others) to microstamping spent shells in firearms and subsequently reading them. Those patents are valid until about 2023 and I'm quite sure that Mr. Lizotte and Mr. Ohar claim that they are patent that occupy the entire field of firearm microstamping - kind of how NTP claims all of the space of push email against RIM/Blackberry and others. Since the legislature required that the technology be avialable from more than one provider and not encumbered by patent I'm quite confident that DOJ can not complete an OAL rulemaking that conforms with the legislation and Patent Law before the expiration of ID Dynamic's patents in 2023.

I wonder who worked those changes into the law?

-Gene

[Charliegone]

Hehe, very interesting Gene. Thanks.

[jdberger]

time to start making and marketing some microstamping equipment - see if the patent holder sues....


I'm thinking some sort of vaporware might be neat....

[bwiese]

Originally Posted by AB1471

...provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions.

Yep, that's extremely useful phrasing because even if Lizotte & co gave state of California/ DOJ the patent rights thru assignment for zero dollars, it still wouldn't fly.

With this exact wording the 'technology' would have to be patent-free, not just "licensed to/in California for no charge".

As Gene said, if the DOJ BoF were to come up with other schemes, they would run head-on into Lizotte's patents, which appear to "occupy the space".

And given the BoFfers's three tries at just getting a semi-palatable new logo created, do you think anyone on that staff has enough creativity, inventiveness or skill to invent a useful/robust new method - going up against someone else's patent attorneys? Is there a budget assigned for them to contract out this work?

Hell, that's not even a fair battle, from an organization that has quite a bit of well-demonstrated legal-technical incompetence.

Also, other marking styles may well conflict with other patented methods used for marking small parts (electronic components, for example).

[KenpoProfessor]

Originally Posted by bwiese

Yep, that's extremely useful phrasing because even if Lizotte & co gave state of California/ DOJ the patent rights thru assignment for zero dollars, it still wouldn't fly.

With this exact wording the 'technology' would have to be patent-free, not just "licensed to/in California for no charge".

As Gene said, if the DOJ BoF were to come up with other schemes, they would run head-on into Lizotte's patents, which appear to "occupy the space".

And given the BoFfers's three tries at just getting a semi-palatable new logo created, do you think anyone on that staff has enough creativity, inventiveness or skill to invent a useful/robust new method - going up against someone else's patent attorneys? Is there a budget assigned for them to contract out this work?

Hell, that's not even a fair battle, from an organization that has quite a bit of well-demonstrated legal-technical incompetence.

Also, other marking styles may well conflict with other patented methods used for marking small parts (electronic components, for example).

I think you guys are discounting the fact that there are some pretty vicious anti gunners that will come up with better technology to do the MSing to screw with us, and make a ton of money to boot. This could happen a lot sooner as well.

Have a great gun carryin' Kenpo day

Clyde

[Wizard99]

Couldn't Lizotte & Co just vacate the patent? Is there any process to simply let a patent go public domain prior to the expiration of the patent?

[guns_and_labs]

Originally Posted by Wizard99

Couldn't Lizotte & Co just vacate the patent? Is there any process to simply let a patent go public domain prior to the expiration of the patent?

Yes, they can. They can also provide an unencumbered royalty-free license to any and all. Some of the laserjet patents are an example of that.

On the other hand, although their patent issued, they have some claims that are likely to be challenged, particularly the method patents. The RCA and IBM patents have precedence, and seem pretty darned close, at least in some of the broader claims. Should add some smoke, if the NRA or anyone wants to fund a patent fight.

[hoffmang]

Lizotte actually wants to make money and there are other - non California - applications of his technology. He's not abandoning the patent until its dead or expired.

No Anti is going to be able to fully subsume the patent Clyde. All they would succeed in doing is extending the amount of time that two technologies - neither of which are patent encumbered - do not exist.

-Gene

[hoffmang]

All,

You're missing something. The law says it can't be encumbered - not it might arguably not be encumbered. The CA State Government is not going to fund a patent invalidation suit anytime soon.

-Gene

[CCWFacts]

And this requirement applies to semi-autos only, right? A single-shot can't possibly be considered a semi auto. And it's easy to convert any semi-auto to a single-shot. And it's easy to convert it back again.

[hoffmang]

CCW,

You are correct. Single shots are exempt from the safe handgun list.

-Gene

[Liberty1]

Is a pistol missing a recoil spring a single shot pistol?

[Librarian]

Now what is really interesting is the line "provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions." Right now one company (ID Dynamics) claims the patents (7111423 and 6886284 amongst others) to microstamping spent shells in firearms and subsequently reading them. Those patents are valid until about 2023 and I'm quite sure that Mr. Lizotte and Mr. Ohar claim that they are patent that occupy the entire field of firearm microstamping - kind of how NTP claims all of the space of push email against RIM/Blackberry and others. Since the legislature required that the technology be avialable from more than one provider and not encumbered by patent I'm quite confident that DOJ can not complete an OAL rulemaking that conforms with the legislation and Patent Law before the expiration of ID Dynamic's patents in 2023.

I think it is not 'from more than one provider' but 'to more than one manufacturer'.

I think in context here 'manufacturer' means 'gun manufacturer'; Lizotte's patents may be subject to challenge, and that would slow things down, but if he does make the technology available royalty free to 2 or more manufacturers, that provision is arguably met.

[hoffmang]

Librarian,

Manufacturer is a bit ambiguous in the law. One interpretation is that its the handgun manufacturers that it must be available to "unencumbered by any patent restrictions." The other interpretation is that it must be available to the machine tool manufacturers "unencumbered by any patent restrictions." Either way, Lizotte is not going to readily comply. He's stated so far only that he'd be willing to waive a per handgun cost. He hasn't stated that he's willing to waive a patent royalty on the machine that creates the part that microstamps at the Sig or Glock factory.

He's out to make money and he now has a Faustian choice. He can either give away his technology or see it adopted. I think Lizotte will just ignore California and move on to Maryland or somewhere else to see if he can get them to force gun manufacturers to use it. In ignoring CA, BoF will not be able to adopt an implementing regulation and 1471 ends up moot.

-Gene

[CCWFacts]

Right, instead of integrating this technology, manufs. should start making permanent single shot variants of their product lines. For semi-autos, this would be very easy to do. Instead of a magazine, ship it with a magazine body that is filled in, and the mag is somehow permanently integrated into the gun. This would hardly change the price and they would get to dispense with the entire safe gun testing thing entirely, and they could ship in their entire product lines.

For revolvers, they could convert them to single-action (I assume this is easy to do?) or they could ship them with a special cylinder that has only one chamber. I'm not enough of a revolver guy to understand the practical choices on these things though.

[CCWFacts]

Originally Posted by garand1945

For semi's you have a different upper that is single shot by removing all parts on the slide that would make it recriprocate. It might be as easy as removing a sprint, or some barrel modifications. There is no need to fill in the mag well as a single shot can have a detachable magazine. The frame/receiver would remain the same, only the slide/upper would change.

Perhaps... but I still think it would be easier to do this in the mag well. Reason: the only two parts that would need to be different would be the mag, and the mag release. The purchaser would of course throw away the filled-in "mag". The mag release would have to be something "permanent", perhaps with a rivet that needs to be drilled or crushed out. Then the purchaser would need to put in a new mag release.

The advantage is that mag release parts are small cheap parts. The slide assembly is a big expensive assembly. And you couldn't credibly sell and or ship ship a single-shot gun with a multi-shot slide in the same package. The mag release is a $10 part, and easy to swap.

Also by filling in the mag well as I described, you would have a receiver assembly that is, in itself, single-shot.

[emc002]

What about reloads? Once used, twice used brass? What if you buy once fired from somebody? What if a shell recovered by LEOs has 3 or 4 microstamps?

I hope I'm not repeating a question, (I did search "microstamp reload") BTW.

[hoffmang]

There are no restrictions on catching your brass, reloading your brass and firing it through another handgun, etc...

-Gene

[CCWFacts]

Originally Posted by garand1945

I though you were talking about having the mag well closed such that you would have to machine it out, but what you are saying is to bolt or rivet in a plug in the shape of a solid magazine.

Well yeah, I am talking about having the mag well permanently closed, with a plug (filled-in magazine) that you would have to remove by machining out... one rivet, maybe using a Dremel tool. This makes the gun 100% single shot, in the receiver itself, and is "permanent" because it requires machining of the receiver assembly (ok, the not-really-a-mag-release-thingy) to undo it.

As I said, I'm not a revolver guy, but I am a semi-auto guy, and this seems a lot saner, and more legally firm, than messing with special slides. Slides generally should be "married" to the gun by the manufacturer. Ie, I want my gun to come with the slide that it was paired with by the manufacturer. My proposed idea here achieves that.

And it's permanent, and can be undone in three minutes with a Dremel tool or pliers, and all you need is a new mag release and a new mag.

[bwiese]

Ted,

I think your worries are misplaced (exempt single-shot converted to semiauto, etc).

For your interpretation to be held, any noncosmetic (i.e., beyond grips, sights) change to a handgun would cause it to fall out of approved category into 'unsafe handgun' territory. Putting a conversion bbl for caliber change, an accurized bbl, changing your Ruger Blackhawk to a double-action (it's been done!), changing your approved 5" 1911 in 45ACP to an unapproved 3.5" in 40S&W, removing a mag disconnect safety, etc.

The handgun itself was 'manufactured' already. There is no crime in changing the configuration of an approved handgun into nonapproved status - people do it everyday. That just makes that gun only PPTable in CA, as opposed to resellable by a CA FFL.

We also already have letters from Alison stating it's legal to home-build handgun.

[Charliegone]

Originally Posted by bwiese

Ted,

I think your worries are misplaced (exempt single-shot converted to semiauto, etc).

For your interpretation to be held, any noncosmetic (i.e., beyond grips, sights) change to a handgun would cause it to fall out of approved category into 'unsafe handgun' territory. Putting a conversion bbl for caliber change, an accurized bbl, changing your Ruger Blackhawk to a double-action (it's been done!), changing your approved 5" 1911 in 45ACP to an unapproved 3.5" in 40S&W, removing a mag disconnect safety, etc.

The handgun itself was 'manufactured' already. There is no crime in changing the configuration of an approved handgun into nonapproved status - people do it everyday. That just makes that gun only PPTable in CA, as opposed to resellable by a CA FFL.

We also already have letters from Alison stating it's legal to home-build handgun.

Talking about that home built gun I remember reading that building a 1911 style handgun was legal from an 80% receiver, if I remember correctly? Anyone have the letter that I might be referring to?

[bwiese]

A single-shot rendition of an autoloader firearm should be fairly easy to do.

• A long 22 Short barrel is used, with very stiff recoil spring.
  
  
• The bbl must be at least 6" long and also long enough to get 10.5"
  overall length measured parallel to bore.
  
  
• The 22Short barrel has no feedramp; that area that would normally
  interface with feed from a magazine should block any round from coming up.
  
  
• A filler block (plastic, wood, whatever) replaces the magazine and a screw-down mag catch is used.

This renders an exempt, single-shot pistol. 22Short cannot cycle the action, yet cartridges w/more energy can't fit. The gun can be manually racked to remove shell and reload.

There could perhaps be some mechanical handwaving to fire rimfire from centerfire slide.


An alternative for 1911s is to just bring in the frame with a Springfield S.A.S.S. or Pachmayr Dominator single-shot upper (typically in a rifle caliber) attached.

In any case, the exempt single-shot (or single-action) firearm should be rendered into an exempt state before coming into CA (until this aspect is clarified). Aside from this, the 'unsafe handgun' law exemptions really only apply to the moment before DROS until the moment after 10day wait delivery/pick-up.

There is no inferrable requirement of permanence of action type or status or features in CA handgun laws (single vs double action, single shot, rimfire vs centerfire, etc.).

[C.G.]

Gene, thank you, again, for good info.

[DrjonesUSA]

Originally Posted by hoffmang

Now what is really interesting is the line "provided that the Department of Justice certifies that the technology used to create the imprint is available to more than one manufacturer unencumbered by any patent restrictions." Right now one company (ID Dynamics) claims the patents (7111423 and 6886284 amongst others) to microstamping spent shells in firearms and subsequently reading them. Those patents are valid until about 2023 and I'm quite sure that Mr. Lizotte and Mr. Ohar claim that they are patent that occupy the entire field of firearm microstamping - kind of how NTP claims all of the space of push email against RIM/Blackberry and others. Since the legislature required that the technology be avialable from more than one provider and not encumbered by patent I'm quite confident that DOJ can not complete an OAL rulemaking that conforms with the legislation and Patent Law before the expiration of ID Dynamic's patents in 2023.

I wonder who worked those changes into the law?

-Gene

This is a great post and I agree that perhaps the gun-owning world isn't quite at an end yet, however I do recall reading that the owner of the microstamping company was quite eager to allow other companies to use his technology.

I do not recall where I read it, probably in an article posted here or in the Sacramento Bee.

Does THAT change things for the worse now?

[hoffmang]

He was and is quite eager to extract license fees from the machine tool manufacturers. That means however that the handgun manufacturers would still have to adopt a technology that was encumbered by patents because the only reason the machine tool guys would license it is if Lizotte chooses to continue to enforce the patents to the extent that it would keep handgun manufacturers from just building their own modifications to their own tools.

This puts Lizotte in a bit of a pickle and we'll have to just keep everyone honest during a rulemaking. It kind of helps that quite a few of us have deep intellectual property law expertise...

-Gene

[bwiese]

...available to more than one manufacturer unencumbered by any patent restrictions.

Gene, I think I am reading that this means no patented tech can be involved - nor that zero-cost licensing is allowed.

If a patent exists on it, or related proprietary tooling - regardless of cost and ease of licensing - it's "encumbered".

Even if DOJ or state of CA owns the patent, it's still 'encumbered'.

[EastBayRidge]

Ditto above - I don't have access to Lexis at the moment but a search of CA case law regarding the term "encumbrance" could prove enlightening. As used in generically in contractual situations, it's a very broad term... and may wind up being broad enough to swallow this bill.

[383green]

Originally Posted by bwiese

There could perhaps be some mechanical handwaving to fire rimfire from centerfire slide.

If the gun's originally-designed barrel is large enough in diameter (say, a .45ACP barrel; who would want anything smaller, anyway?), then the .22 barrel could be made with the bore off-center so that the regular center-fire firing pin would hit the .22 short cartridge rim.

Getting the original extractor to work could be a bigger problem. Maybe just ship the gun with a little ramrod to poke the fired case out of the chamber?

Originally Posted by hoffmang

I wonder who worked those changes into the law?

I do, too. Was it somebody sneaky, or just somebody who didn't think things through?

[glockman19]

Hoffman,

Thank you again for your excellent analysis.

You are correct it may be years before a Microstamped gun is available in CA. Bt that's not to say we won't be stuck with the guns already on the list.

I gusee our new best friends will be others reloacting to CA. If i were moving into the stae I'd be loading up on non approved DOJ guns.

[Anonymous Coward]

I don't see how this is going to help much.

If the inventor of the MS technology decides that instead of licensing the technology it's still better to screw gun owners, then he could abandon the patent and DOJ could approve the technology.

If not, then in 2010 there might not be an approved MS technology and no new guns would get on the handgun roster. This could be overturned in the light of Heller, but then this will take time and it's not clear if the 2A means that you can get every handgun instead of just the ones on the roster.

[bwiese]

Originally Posted by 383green

If the gun's originally-designed barrel is large enough in diameter (say, a .45ACP barrel; who would want anything smaller, anyway?), then the .22 barrel could be made with the bore off-center so that the regular center-fire firing pin would hit the .22 short cartridge rim.

Good thought.

Getting the original extractor to work could be a bigger problem. Maybe just ship the gun with a little ramrod to poke the fired case out of the chamber?

It's a single shot pistol. It doesn't really need an extractor function.

A Delrin rod would work fine.

We do not need a 'pretty' gun or an 'ergonomic' one, just one that has rational operation (i.e, won't blow up, accurate, etc.).

[ldivinag]

Originally Posted by jdberger

time to start making and marketing some microstamping equipment - see if the patent holder sues....


I'm thinking some sort of vaporware might be neat....

PRESS RELEASE: to be released immediately


Announcing Oct 16, 2007; Armorer Systems and Sciences (NYSE:***) will announce that our pre-patent system will file for California's newly signed AB 1471.

Our *** Weapons Internal Protection Environment (***-WIPE) is designed to extract the DNA of the weapon owner and imprint the sample DNA strand onto the ammunition's casing as it leaves the barrel.

The current process is almost ready to put through a patent process.

Expected cost to add to firearms will be in the range of $2.00. So a minimal increase in the overall cost of the manufacturing will assumed.

Please refer to our patent attorneys: Dewey, Cheatum & Howe for more information.

[sierratangofoxtrotunion]

Kudos for Gene for having the patience to actually read the law. I dont!

Does anybody have a patent number for this? A link to the patent online perhaps? I'm curious what the manufacturing process actually is for a microstamping firing pin.

Nevermind, Gene did my homework for me. I can't read.

[bulgron]

Originally Posted by Anonymous Coward

If not, then in 2010 there might not be an approved MS technology and no new guns would get on the handgun roster. This could be overturned in the light of Heller, but then this will take time and it's not clear if the 2A means that you can get every handgun instead of just the ones on the roster.

Actually, you go after gun bans based on both Heller AND Miller. Basically, Heller gives us the individual right to keep arms (at a minimum, and assuming a victory). Miller gives us the test by which we can determine if a particular handgun can be regulated.

If it's good enough for the militia, then it can't be regulated under Miller.

So all we have to do is show that some military or police organization is using a particular type of firearm, and at the very least they can't prevent individual Americans from owning it.

Frankly, with a combined Heller and Miller legal reading, I think the entire safe handgun list has to go away. Instead, it should be replaced by a rather lengthy list of all the kinds of firearms in use by US military and police personnel. Then we can extend the list to what freedom fighters all over the world use. Frankly, it would be a fascinating list to build, don't you think?

[bwiese]

Originally Posted by bulgron

Frankly, with a combined Heller and Miller legal reading, I think the entire safe handgun list has to go away. Instead, it should be replaced by a rather lengthy list of all the kinds of firearms in use by US military and police personnel. Then we can extend the list to what freedom fighters all over the world use. Frankly, it would be a fascinating list to build, don't you think?

And if the G didn't list 'em right, you could have Son-of-Harrott

Hell, there are a variety of Harrott-like issues already with the Roster.

[aileron]

Originally Posted by bulgron

Actually, you go after gun bans based on both Heller AND Miller. Basically, Heller gives us the individual right to keep arms (at a minimum, and assuming a victory). Miller gives us the test by which we can determine if a particular handgun can be regulated.

If it's good enough for the militia, then it can't be regulated under Miller.

So all we have to do is show that some military or police organization is using a particular type of firearm, and at the very least they can't prevent individual Americans from owning it.

Frankly, with a combined Heller and Miller legal reading, I think the entire safe handgun list has to go away. Instead, it should be replaced by a rather lengthy list of all the kinds of firearms in use by US military and police personnel. Then we can extend the list to what freedom fighters all over the world use. Frankly, it would be a fascinating list to build, don't you think?

Hopefully at that point they would concede and it would become moot. I would hate to think that a lot of beautiful old relic and modern custom firearms would become illegal because they didn't serve a military purpose.

[guns_and_labs]

Originally Posted by bwiese

Gene, I think I am reading that this means no patented tech can be involved - nor that zero-cost licensing is allowed.

If a patent exists on it, or related proprietary tooling - regardless of cost and ease of licensing - it's "encumbered".

Even if DOJ or state of CA owns the patent, it's still 'encumbered'.

It's an interesting drafting issue. If it were merely "unencumbered", you're right, existence of a patent right would encumber it. "Encumbrance" is all about ownership and title, not use. Even assignment to the public domain would still constitute a restriction on transfer or title. Lizotte would have to actually abandon the patents, which would not stop anyone else from then filing their own version.

But "unencumbered by patent restrictions" seems to imply they were using a common definition and more use-oriented, more like "unrestricted".

I suspect it's moot, though. As pointed out elsewhere, Lizotte et al were not doing this for humanity, they were doing it to make money. Now even if they licensed royalty free for gun manufacturers on a per gun basis in a use-specific license, as was suggested, that still is a "license restriction" or a patent restriction.

Who slipped that language in? And did they know the difference between encumbrance and restriction?

[hoffmang]

That language was placed into the bill by a TLA that we all know and love (or hate if we can't read between lines.)

Also, to clarify a thought above. Until the new regulations are final, firearms can be added to the list without microstamping. If it takes until 2023 to finalize the regulations, gun manufacturers will be able to add handguns up until new regs take effect - or 2023...

-Gene

[Anonymous Coward]

Originally Posted by hoffmang

Also, to clarify a thought above. Until the new regulations are final, firearms can be added to the list without microstamping. If it takes until 2023 to finalize the regulations, gun manufacturers will be able to add handguns up until new regs take effect - or 2023...

-Gene

Why would that be? I don't see this in 12126.7.

[Scarecrow Repair]

Originally Posted by Anonymous Coward

Why would that be? I don't see this in 12126.7.

Because they might not want to add a regulation which would be immediately challenged for its patent encumbrance. They might rather wait until the patent expires.