How baby product protection works. Because we haven't seen your product, we can't prescribe a specific type of protection. However, we've listed the common ways products are protected under intellectual property law below (with links for more information). Keep in mind that some baby product inventors manage to obtain deals without any registered intellectual property protection. That's because toy and kids products companies often enter into option/confidentiality deals with agents or well-known inventors in which they agree to evaluate invention ideas and to either license the item or return it to the inventor. Often the company will contract to pursue patent or trademark protection on behalf of the inventor and then deduct the costs of obtaining these rights from future royalties. Some of these companies often don't bother with patents (or any IP rights beyond copyrights and trademarks) because the shelf life on some kids products is so short it's not worth waiting the 18-24 months for a patent. In these situations, it all about "first to market" not IP protection.
Typical forms of IP protection include:
- Provisional patent application (PPA). This isn't really a form of intellectual property protection. A PPA allows you to hold your place in line at the Patent Office for a year from the date you file. But it has no value unless you file a regular utility patent application (see below) within one year of filing your PPA. One reason why some innovators like it is that it's inexpensive to file (currently $110) and it allows the filer to claim "patent pending" on the device, a statement that prevents some would-be infringers from copying it. PPAs generate mixed feelings from patent practitioners. On one hand, they can be very helpful in preserving rights and lengthening the period before which a patent application needs to be filed. On the other hand, if the PPA doesn't accurately describe how to make and use the invention, it may prove useless in preserving rights. You can read more about it here and here's a guidewe prepared for Nolo's PPA filing system. (Full disclosure: You know we work for Nolo, right? We have a really cool office there that people refer to as the John Malkovich office because it's between two floors like in that John Malkovich movie. And we share the office with these two dogs.)
- Utility patent. You already know the details on pursuing a utility patent (granted for new, nonobvious inventions). Utility patents are expensive (thousands in filing fees and thousands more in attorney fees). It's possible to file by yourself (and many people have done so successfully) but it's usually beyond the scope of most inventors who prefer to rely on a patent attorney's expertise. In addition, the process can take years before you know whether a patent will issue.
- Design patent. If you have a useful object and you want to protect its appearance (not its functionality), you can seek a design patent. Design patents are granted for "new and original, nonobvious ornamental designs for useful articles of manufacture." Preparing and filing a design patent is fairly simple--especially when compared to preparing and filing a utility patent. If you're a self-starter with a do-it-yourself mindset, you can, with a bit of work, prepare your own design patent application and save on the attorney fees. The design patent application consists of a short written document (the Specification), professionally prepared drawing(s) showing the appearance of your design, a Design Patent Application Transmittal--a cover sheet that accompanies your application, a declaration, and the fee ($110 to file and more as the application proceeds). The downside is that you can only stop similar designs that are substantially similar. So if a competitor designs a different appearance for the same functionality, you can't sue under design patent law.
- Copyright. Copyright, like design patents, protects appearance, not functionality. It's less expensive and even easier to file than a design patent. The primary differences are that you usually get a copyright automatically as soon as you finish the work (registration enhances your rights) and to sue an infringer, you must demonstrate they had access to your work (which is not a requirement for design patent infringement).
- Trademarks and trade dress. We've thrown trademarks in here although they are not likely to help you too much. Trademarks protect those elements of your invention that identify and distinguish your product or business to consumers -- for example, the name, a logo, a distinct color scheme, or in some cases, the distinctive design of your goods or packaging. The reason it's unlikely to be available for most designers is that protection is dependent on use of the trademark in commerce. And most designers like you who are seeking to license, haven't used the mark in commerce. It's true you can reserve the mark for future use but only if you have a bona fide intent to use the mark on the goods in commerce within six months of filing your federal trademark application.
We could go on and on and talk about trade secrets and idea protection agreements and other contractual stuff that might give you an advantage but we think we've already put most readers asleep and we're afraid to induce any additional slumber. PS, we're working on a new edition of our licensing book and that may help you if you get an offer.
