Patenting a consumer-oriented product: emphasizing function and form

Every year, entrepreneurs introduce hundreds of new consumer-oriented products to the market. These products adapt to a variety of personal activities: cooking, personal care, sports, gardening, cleaning, etc. Consumer goods are generally mass-produced and sold cheaply, say less than fifty dollars. Therefore, out of necessity, they use designs that allow for low-cost manufacturing:, they are made up of just a handful of easy-to-assemble parts. Unfortunately, a low-cost product design is vulnerable to being “rejected” by so-called copycat competitors.

To combat ‘copycats’, consumer product manufacturers sometimes seek patent protection for their product designs. However, protecting a consumer product with a patent can be difficult.

To begin with, to obtain patent protection, an innovative consumer product must be different of all the above products and it also has to be different in a in a significative way. In “patent holder”, the difference has to be “not obvious”. Some consumer products are “revolutionary.” These rare innovations tend to pass through the patent office with relative ease because they are either the first of their kind or radically different from all previous designs. However, the usual case is that an innovative consumer product is an incremental improvement or variation of previous product designs. Proving to the patent office that the design of such a product is inventive can be challenging.

An established method of arguing that an innovation deserves a patent involves highlighting the key technical differences between a new design and previous designs. This is where obstacles arise. There are so many ways to build a mousetrap. So it’s no wonder that the “latest and greatest” mousetrap uses parts of an old mousetrap. Very often, the features that are similar between a new design and an old design outnumber the features that are different. In these cases, the true innovation in a design is invariably found in a single piece or a handful of pieces. More precisely, the innovation lies in how those parts allow the design of a product to work better in some respect.

So it should go without saying that writing a patent application that only describes what a product looks like may be inappropriate. That is, simply creating a “parts list” and describing the materials, dimensions, shapes, and so on. each part may not fully express significant design differences from previous designs. The patent application must go further and provide the details of how the critical parts act or interact to provide a benefit that did not previously exist. Failure to adequately describe such actions or interactions can make it even more difficult to convince the patent office that an innovation deserves patent protection.

At this point, it is worth noting that the vast majority of consumer products on the market are no protected by patent. In many cases, branding and strategic pricing can be enough 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 the grant of a patent can take three years or more, patent protection for short-lived products makes little sense. And as many inventors have learned, receiving a patent grant does not guarantee commercial success. Therefore, inventors must remain receptive to business models that do not rely on the existence of patent protection for commercial success.

However, there are situations where patent protection can be a key asset that an entrepreneur wishes to possess in order to promote a business enterprise. In those cases, care must be taken to ensure that a patent application fully describes the form. and function of an innovative product design. The investment of time and effort to describe both aspects increases the chances that the patent office will be able to appreciate product design innovations and issue a patent.

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