Managing The Best Worst-Case Scenario: What Product Designers Should Do BEFORE The Pitch

Posted by: JustinFreeman on Wednesday, October 4, 2017
Guest Blog by Angela Grayson of Precipice IP. Innovation open calls by retailers are everywhere these days from Etsy to Walmart.  Companies place open calls in hopes of finding a relatively inexpensive means of discovering the next great product compared to developing said products internally themselves.  Open calls are also of great benefit to product designers as well, because what designer has not dreamed of seeing their product or technology used or sold by a major retailer like Walmart, Target or Amazon? With so many opportunities to showcase new and innovative products, a product designer could become giddy just thinking of the possibilities. But every great opportunity poses a risk that must be managed. Besides potential product liability risks, designers must plan for the best worst-case scenario. This scenario exists when your amazing new product becomes so successful that it is copied or counterfeited, and you have little to no recourse because you didn't bother to adequately protect your product's brand, data, or design.  Spend time and effort to map out a good product protection strategy. Let's face it; product development is hard work. If you are going to the trouble of pitching a product at an open call or expo, you most likely poured your heart and soul into the perfect design.  You've done your research to assess the market. You've analyzed manufacturing costs and supply chain logistics. You've squeezed every bit of excess cost out of the product. You've spent innumerable hours on product packaging design, and now you're finally ready to pitch your idea to the mainstream. However, so often product designers fail to take into consideration the steps that can and should be taken to prevent a would-be-bad-actor from outright copying the brand, the product, the data, or the design before the product pitch.  Consider product protections during product development. The ideal time to consider product data protections is before product launch, and more appropriately, during the product development phase.  Designers that don’t have the means to produce the product may rely on supply relationships with manufacturers. Among other provisions, developers should consider negotiating supply agreements that contain confidentiality terms. Contract terms restricting the ability of a supplier to disclose and make use of product designs outside of the scope of the agreement can be important since many manufacturers make similar products for multiple vendors. Restricting the ability of a supplier to use your designs to compete against you, or to benefit your competitor is a battle worth fighting.  The design specifications can be a tremendous competitive advantage you should take care to safeguard.  Protect the value driver of new products. That brings me to another point- assess and protect the unique value of the product. Having a good sense of the unique value proposition that makes the product special, informs the right product protection strategy. For example, in some instances, design patents are used to protect the ornamental features of new products.  In other instances, utility patents are used to protect the functional or utilitarian aspects of products, including how a product is used or how a product is made.  In other scenarios, registered trademarks are used to protect product branding, including product names and logos. In the case of product artwork, copyright registrations are used to protect original copy from potential counterfeiters. Be aware, however, some forms of product protection have imbedded nuanced risks related to public disclosure.  For example, in the case of patents, some countries consider any public disclosure before a patent is filed an "absolute bar" to obtaining a patent. Conversely, in the U.S., an inventor has up to one year from public disclosure to file for a patent. As you can imagine, a lot can happen in a year, and people tend to forget to file. At a minimum, filing a design or provisional patent application before the pitch is usually a good place to start. A good IP strategy as we say in the legal profession depends on what drives the value, and care should be taken to assess and preserve the value drivers before value is unintentionally lost. Protect products with the right mix of intellectual property and data protections. While pitching new products to retailers and distributors can be exciting, care should be taken to take a step back and factor in a strategy that protects the product from copying and counterfeiting. A good strategy is one that protects the unique value proposition of the brand, the product, the design, and the data associated with any new product development. Consult a knowledgeable technology attorney early and often to assess and execute the appropriate strategy right for you.


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