Deciding on whether to file a patent on a new child's product design or not

2019 Note - The amazon affiliate link to the nursing cover above is from a different manufacturer then the one described below. I do not know the current status of the Bebe Aulait patent or protection efforts. Regardless there are dozens of similar ideas on Amazon and other places.

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.

Who creates grade rules?

Some one asked me a grading question the other day. She wanted to know who creates grade rules?

A pattern maker, grader, or you could make the grade rules. If you choose to make the grade rules yourself, I have some guides available in The Organized Fashion Designer and The Simple Tech Pack. It's harder with children's clothing because there isn't as much standardization. An experienced grader should have some standard charts or be able to develop rules off of your measurement charts. I would personally start developing grade rules by referencing the Jack Handford book and make modifications as needed. I would only let a pattern maker or grader do it who has experience with it.

You can buy measurement charts from ASTM as a place to start. The ASTM measurement charts for children are probably the best resource for children's body measurements. Be cautious of using free charts found on the Internet. I have seen free measurement charts on the Internet riddled with inconsistencies that could lead to serious errors.

If you have time, you may want to sew up the smallest and largest sizes just to double check the grade and sizing. It doesn't have to be in your production fabric or anything. A fitting is the only way to know if your grade is correct. You won't need to do this on every style or very often. Kind of important when starting out though.

The problem with Exemptions and the CPSIA

I think I have been a part of a very minor group of protesters who want a repeal of the CPSIA 2008. The idea has generally been quashed because it doesn't give the appearance "of playing along" or "of being cooperative". See, everyone wants the safest products for children so they are willing to play along with stricter regulations. Perhaps some new safety rules are needed, but the CPSIA is a bureaucratic, chaotic mess.

A repeal may be near impossible to get. It would require vote hungry lawmakers to admit they made a mistake. Who wants to admit they didn't read the darn thing before voting on it? We know most of them didn't because they by and large act with shock when their constituents tell them the truth. What lawmakers want to face angry constituents who insist on stronger regulation to protect children? No, they all patted themselves on the back because they did something to protect a vulnerable population. It was feel good legislation built on a foundation of emotionalism and fear mongering.

So anyway, every industry touched by this wants an exemption. Bicycle makers can't make strong welds without lead. Clothing has little to no lead, which washes out). Book makers use soy ink, so few books would have lead. Electronic devices have internal lead which is inaccessible, micro cottages want permission because they do one-of-a-kind or sell to a very small customer base (small exposure). Resale shops could never test all of their random product. All of these are legitimate reason to exempt a particular industry. If the exemptions we need are granted, we will kind of be back where we started pre-CPSIA.

The CPSC has issued a couple of exemptions. Though the exemptions are largely lip service without any real meat behind them. For example the natural materials exemption. Natural materials such as wood and cotton are exempt as long as they are left in their natural state. Well such an exemption doesn't really help the textile industry because nearly all textiles are processed in some way. White cottons have been bleached and/or dyed white. Such actions mean that the exemption no longer applies. Have you seen unbleached and unprocessed cotton? It's not all that attractive. But if you can build a clothing company around unbleached cotton muslin with unfinished wood buttons, be my guest.

Let's face another fact. Lead is a natural element of our planet. So according to the exemption (if we were to take the extreme interpretation), we could sell unprocessed lead because it is a natural material. But that wouldn't make sense, now would it.

The next exemption on resale stores is another problem. Perhaps the CPSC was begining to feel the pressure. But if you read the actual press release, resale stores are not really off the hook. They can continue their business, but if they do happen to sell product that does not conform they still face criminal prosecution. Floating around twitter is this statement:

Thrift exempt is like telling your kid they don't need to brush teeth, but spanking them if they have bad breath!

Resale shops could still have the CPSC police show up at their door. (I guess we could trust the CPSC when they say they won't target thrift stores, but the language of the law and the exemption hasn't changed. IOW, the door is still open that they could inspect your business if and when they have enough money and CPSC police). All it would take is a guerilla group or investigative reporter to go into any shop with an XRF gun and turn you in. Really, there are regular retail shops dealing with this scenario now.

So Resale shops exercise their business at their own risk. And really, most retailers will be operating like this on February 10, 2009. The hammer won't necessarily fall on that day, but it will when a CPSC policeman or bureaucrat wants to look like they accomplished something.

We never needed this new legislation. I know it sounds unbelievable that Congress really didn't need to act. The CPSC already had sufficient power to enact new safety rules. They had this power when the agency was created in the 1970's to develop safety standards, issue recalls, and ban certain products. If new lead regulation was needed, the agency could have acted on its own. It had that power. The idea that it required an "act of congress" to create new regulations was false. Perhaps Congress could have passed something that said, "We are increasing the fines and we expect new regulations that address concerns with lead in toys to be enacted within the next year." Maybe Nancy Nord didn't want to stick her neck out and actually accomplish something other than lobbyist paid trips.

Anyway, the CPSC has passed various regulations over the years. Flammability and sleepwear, painted metal, drawstrings, and children's jewelry. They even repealed one (Tris in pajamas). All this happened without much intervention from Congress. Does this agency not have a backbone? Let's repeal this act and let's allow industry and science be involved in the crafting the few rules that are needed.

Accounting for shrinkage and/or stretch in sewing patterns

Just a few comments I made in the Fashion Incubator forum when making patterns to accommodate stretch (knits, stretch wovens) and/or shrinkage.

Have to be careful when scaling patterns in CAD. Shrinkage/stretch is not proportionally the same in both directions. Many pattern making books advise to add the same amount of change to the length as the width. Don't do this. The only way to know is to know the fabric. Things shrink more in length than width. I am so sick of washing pants and long sleeve shirts and having them end up too short. If anything, remove width ease and add length on knits. It sounds counter-intuitive but prevents high-waters. Not sure on stretch denims, so test, test, test.

In my Etsy shop I have a simple tech pack kit that includes a wash testing form. The wash testing form includes instructions and formulas to figure out shrinkage in both the length and width of a fabric. It is well worth the investment of time and money to test your fabrics for shrinkage, particularly knit fabrics. Once you know the approximate shrinkage of a knit fabric, I recommend adding the extra width and length needed to accommodate expected shrinkage.

Adding a shrinkage allowance to a pattern piece may cause the finished garment to look proportionally wrong. If you do not pre-wash the finished item before shipping to the retailer, the item may look wrong on the hanger and the customer may decline purchasing the item because it does not appear to fit. So there is a limit to the amount of shrinkage you can include in a pattern before proportions, fit, and hanger appeal are impacted. Generally, you can include about 3-5% shrinkage in a pattern without too much of an impact. If your wash testing results return a shrinkage greater than 5%, then you either need to reject the fabric or pre-shrink the fabric before cutting and sewing.

Knits in particular add an added layer to product development because they are more likely to shrink. There are various types of knit fabrics with different types of finishing. Some knits are pre-shrunk at the factory and some are not depending on whether the fabric will be printed or dyed at a later date. When sourcing knits it is important to ask about shrinkage.

Accounting for stretch in knit fabrics is also another added layer. Stretch influences fit. Should the item fit close to the body? If so, the pattern needs to be reduced in width and length. This is another area where the amount to reduce will be different for the length and width. As an item is stretched in one direction, the other direction also changes. You may notice this when you stretch a knit t-shirt in the width direction - the length of the t-shirt will shorten. This is a complex topic and the answers depend entirely on the style and chosen fabric.

A Free Christmas Stocking Sewing Pattern

This is a mini-Christmas stocking that I was selling in my store. Now that the store is closed, I am making the pattern available to every one as a thank you to my blog readers. The pattern is being released into the public domain. You can make stockings and sell them, or whatever you want, just make something pretty and give it to someone.

I am releasing the pattern only - no sewing instructions. The pattern has 1/4" seam allowances on all edges, but you can ignore them if you want. This is so you can use your own imagination in whatever you create. Have fun with it! Click on the image below to enlarge it and print it from your browser window.