Every year, entrepreneurs introduce into the market hundreds of new consumer-oriented products. These products cater to a variety of personal activities: cooking, personal care, sports, gardening, cleaning, etc. Usually, consumer goods are mass-produced and sold at a low cost, say less than fifty dollars. Therefore, out of necessity, they utilize designs that allow for low-cost manufacturing: i.e., they are composed of only a handful of easy to assembly parts. Unfortunately, a low-cost product design is vulnerable to being ‘knocked off’ by so-called copycat competitors.
To combat ‘copycats,’ makers of consumer products sometimes seek patent protection for their product designs. However, protecting a consumer product with a patent can be tricky.
For starters, to obtain patent protection, an innovative consumer product has to be different from all prior products and it also has to be different in a meaningful way. In “patentese,” the difference has to be “non-obvious.” A few consumer products are ‘game changers.’ These rare innovations tend to sail through the patent office with relative ease because they are the first of a kind or radically different from all past designs. However, the usual case is that an innovative consumer product is an incremental improvement over or a variation of previous product designs. Proving to the patent office that such a product design is inventive can be challenging.
One established method for making the case that an innovation deserves a patent involves highlighting the key technical differences between a new design and prior designs. This is where obstacles arise. There are only so many ways to build a mousetrap. So it is no surprise that the ‘latest and greatest’ mousetrap will use parts of an old mousetrap. Quite often, the features that are similar between a new design and an old design will outnumber the features that are different. In these instances, the true innovation in a design is invariably tucked within only a single part or a mere handful of parts. More precisely, the innovation lies in how those parts enable a product design to function better in some aspect.
It should be evident, therefore, that writing a patent application that only describes how a product looks can be inadequate. That is, simply creating a “parts list” and describing the materials, dimensions, shapes, etc. of each part may not fully express the meaningful design differences vis-à-vis prior designs. The patent application needs to go further and furnish the details as to how the critical parts act or interact to provide a benefit that did not previously exist. Failing to adequately describe such actions or interactions may make it all the more difficult to convince the patent office that an innovation merits patent protection.
At this point, it is worth noting that the vast majority of consumer products on the market are not patent protected. In many cases, branding and strategic pricing may be sufficient for a product to generate sales while discouraging copycat competitors. In other cases, a consumer product may have a market life of only three to five years. Since it may take three or more years for a patent to grant, patent protection for short market life products makes little sense. And as many inventors have learned, receiving a patent grant does not guarantee commercial success. Therefore, inventors should 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 wishes to possess to further a business venture. In those cases, care should be taken to ensure that a patent application fully describes the form and function of an innovative product design. Investing the time and effort to describe both aspects increases the chances the patent office can appreciate the innovations of a product design and issue a patent.