Every year, entrepreneurs bring hundreds of new consumer-oriented products to market. These products are suitable for a variety of personal activities: cooking, personal care, sports, gardening, cleaning, etc. Consumer goods are generally mass-produced and sold at low cost, say less than fifty dollars. Therefore, by necessity, they use designs that allow for low-cost manufacturing: me.me., are made up of just a handful of easy-to-assemble parts. Unfortunately, a low-cost product design is vulnerable to being ‘taken out’ by so-called copycat competitors.
To combat ‘copycats’, consumer product manufacturers sometimes seek patent protection for their product designs. However, protecting a consumer product with a patent can be tricky.
To begin with, to obtain patent protection, an innovative consumer product has to be different from all the above products and it also has to be different in a in a significative way. In “patent”, the difference has to be “non-obvious”. Some consumer products are ‘game changers’. These rare innovations tend to sail through the patent office with relative ease because they are either the first of their kind or radically different from all previous designs. However, the usual case is that an innovative consumer product is an incremental improvement or variation on previous product designs. Proving to the patent office that such a product design is inventive can be challenging.
An established method of arguing that an innovation deserves a patent is to highlight the key technical differences between a new design and previous designs. This is where the obstacles arise. There are so many ways to build a mousetrap. So it’s no surprise that the ‘latest and greatest’ mousetrap uses parts from an old mousetrap. Very often, features that are similar between a new design and an old design will outnumber features that are different. In these cases, the true innovation in a design is invariably hidden in a single piece or a handful of pieces. More precisely, innovation lies in how those parts allow a product’s design to work better in some way.
It should be obvious, therefore, that writing a patent application that only describes what a product looks like may be inappropriate. That is, simply creating a “parts list” and describing the materials, dimensions, shapes, etc. of each part may not fully express significant design differences from previous designs. The patent application must go further and provide the details on how the critical parts act or interact provide a benefit that did not exist before. If such actions or interactions are not adequately described, it can be even more difficult to convince the patent office that an innovation deserves patent protection.
At this point, it is worth noting that the vast majority of consumer products on the market are No patent protected. In many cases, strategic branding and pricing can be enough for a product to drive sales and discourage copycat competitors. In other cases, a consumer product may have a commercial life of only three to five years. Since it can take three or more years to grant a patent, patent protection for products with short shelf lives on the market makes little sense. And as many inventors have learned, receiving a patent grant does not guarantee commercial success. Therefore, inventors must remain receptive to business models that do not rely on the existence of patent protection for commercial success.
Still, there are situations where patent protection can be a key asset that an entrepreneur wants to own in order to further a business enterprise. In those cases, care must be taken to ensure that a patent application fully describes the shape and function of innovative product design. Investing the time and effort to describe both aspects increases the chances that the patent office will be able to appreciate product design innovations and issue a patent.
