Wave vs. Wave: Breaking News in San Diego’s War Between the Surf Machines

Stand on any beach on any ocean, and one of the things you will eventually notice about waves is that they keep coming—which might turn out to be the case with legal disputes over wave-making technology as well.

It certainly seemed that way last year, when I wrote about a startup in Solana Beach, CA, called American Wave Machines, or AWM. Founder Bruce McFarland and his wife Marie started the company in 2000 to develop his ideas for SurfStream, a machine capable of generating a standing surfstream-logowave big enough for paying customers to surf. But AWM’s hopes for a glassy ride to the green room got pitched in the soup in 2008, when San Diego’s “wave war” began.

McFarland’s former boss, Tom Lochtefeld, filed a patent infringement suit, alleging that AWM’s technology was infringing on patents that Wave Loch logoLochtefeld and his company, San Diego-based Wave Loch, have been commercializing since 1991. Lochtefeld was all amp’d about McFarland dropping in on his wave—or what he said was his wave. It was like a field day at the courthouse for all the men in the gray suits. AWM denied Lochtefeld’s allegations, and asked a federal judge in San Diego to suspend the litigation until the patent office has conducted an official review of the claims asserted by Lochtefeld and Wave Loch.

So it seemed like victory at sea for AWM when I got a press release this week (from AWM) that says the U.S. Patent and Trademark Office (USPTO) “has invalidated each of the 27 patent claims asserted by Wave Loch in its patent infringement claim against American Wave Machines.”

In an e-mail, the lawyer for AWM, Gil Cabrera, says, “Once the USPTO issues the Reexamination Certificate consistent with its final rejection of Lochtefeld’s claims, we will file a motion to dismiss the entire case because none of the claims he asserted against AWM survived reexamination.”

Cabrera says the patent office ruling puts AWM in a “great position to ultimately prevail in the litigation.” But when I asked Lochtefeld for his response, he was like, Whoa. Wait a minute Ho-dad. He tells me by e-mail: “Bruce. Your information is false.” Then he calls me—from London—to say, “There are still patent claims outstanding. I met with

Pages: Page 1, Page 2

Author: Bruce V. Bigelow

In Memoriam: Our dear friend Bruce V. Bigelow passed away on June 29, 2018. He was the editor of Xconomy San Diego from 2008 to 2018. Read more about his life and work here. Bruce Bigelow joined Xconomy from the business desk of the San Diego Union-Tribune. He was a member of the team of reporters who were awarded the 2006 Pulitzer Prize in National Reporting for uncovering bribes paid to San Diego Republican Rep. Randy “Duke” Cunningham in exchange for special legislation earmarks. He also shared a 2006 award for enterprise reporting from the Society of Business Editors and Writers for “In Harm’s Way,” an article about the extraordinary casualty rate among employees working in Iraq for San Diego’s Titan Corp. He has written extensively about the 2002 corporate accounting scandal at software goliath Peregrine Systems. He also was a Gerald Loeb Award finalist and National Headline Award winner for “The Toymaker,” a 14-part chronicle of a San Diego start-up company. He takes special satisfaction, though, that the series was included in the library for nonfiction narrative journalism at the Nieman Foundation for Journalism at Harvard University. Bigelow graduated from U.C. Berkeley in 1977 with a degree in English Literature and from the Columbia University Graduate School of Journalism in 1979. Before joining the Union-Tribune in 1990, he worked for the Associated Press in Los Angeles and The Kansas City Times.