February 17, 2009

Baby product IP run amok pt. 1

I don't know why, but some baby clothing and accessory designers are under the impression they need to go to extremes to protect their product. This includes patent, trademark, and copyright protection. Maybe it is the inner paranoia of being copied. I don't know. It seems that there are A LOT of baby/child related products that have been patented. Why? Some products are truly patent worthy but most are not. Regardless, patents are only worth as much as the effort used to protect the patent. In other words, it may cost you more to protect your patent than the money you make off it. That isn't true for all products, but for many. For many design entrepreneurs it will be a waste of time and money. There are few processes or ideas that are unique in this industry. Most designs are just reinterpretations or a new combination of existing ideas.

There are three types of patents:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

In addition:
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable

I don't know under which of the three types of patents that Bebe Aulait has filed their patent for their Nursing Cover and I am not sure their claim is truly new or novel. (Bebe Aulait purchased the invention from the inventors and have become the new patent asignees). The idea has been around for a long time (one friend claimed she used one 20+ years ago). I think their claim as an invention centers around the addition of boning (stiffener) in the neckline of the apron that helps hold the apron away from the body. One interesting part of the patent is end caps on the boning. I haven't seen end caps for boning before and I could get behind that one small aspect of the patent. Have any of you seen endcaps for boning before?

In any event, there are some problems with the patent and I think it could be challenged. But who has the time and money. The nursing cover is a glorified apron.

Rumor on the street is that Bebe Aulait is enforcing their patent pending product in the same vein as Taggies, which I have blogged about before. It calls into question the value of their patent since it is so easy to copy. Not that I am encouraging copying. If you do, you will receive a threatening "cease and desist" letter from a lawyer.

I don't know what it takes to challenge a patent. I am sure at some point an IP lawyer will have to be employed and they are very expensive.

Trademarks are issued to brand names. Like patents, it creates a property right over a brand name. I will write about a trademark problem with onesies (owned by Gerber) at a later date. The next problem is copyrights. Taggies claims copyright protection on their products. Such a claim is not valid because there is currently no copyright protection on clothing or textile items. Copyright protection can apply to textile designs such as fabric prints. A measure has been in the works to extend copyright to apparel but is apparently stuck in committee. Such an extension of copyright would have a devastating affect on the apparel industry in the US.

What do you think?

Thanks to MyPreciousKid and Trinlayk for bringing this to my attention.


  1. Anonymous5:24 AM

    End caps for boning are pretty common in the UK - you can buy them from haberdasheries, and they are available online. There are some examples here: http://www.fabmania.com/W13F001.htm

  2. Simon Henry has used endcaps for boning in both his books The Little Black Dress and The Party Dress. So the idea has already been published on prior to their "coming up" with it ;)