A fellow inventor turned me onto Lucky Break Wishbone a company that produces plastic wishbones just like your turkey. Now everyone around the table, even vegetarians can take part in the tradition of the wishbone. While this product is appropriate because of Thanksgiving, it also provides an interesting product protection case, without patents.

Check out a quick video

First a little background. The idea for a plastic wishbone that mimicked the breaking of a turkey wish bone was conceived in 1999. In 2004, the Lucky Break Wishbone was in a market test with 10 retailers. In 2005 the website was launched and sales channels were opened up.  And this is where the story gets very interesting.

In June of 2005, Y+R the promotional firm for Sears expressed interested in supplying Lucky Break Wishbone’s as a promotional product around Thanksgiving.  On August 4th they had agreed on 1.3 million wishbones in the Sears blue color.  But in 9 days, on August 11th Y+R said that they were going offshore.  Sears did do the promotion in November with their off shore version.  Lucky Break filed a copyright infringement case.

Why a copyright, when everyone is talking always talking about patents?  Well from IPWatchdog “a copyright is provided to the authors of “original works of authorship,” including (1) literary works ; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works ; (6) motion pictures and other audiovisual works ; (7) sound recordings; and (8) architectural works.”  While many focus on copyrighting protecting the language around the product, the design is actually a form of the pictorial, graphic and sculptural category.

The case took a very interesting turn when Sears argued that the copyright did not apply, the wishbone was from nature and therefore God’s art.  However, with the help of some bird bone experts, Lucky Break was able to prove that their design differed significantly from the actual turkey bone in order to re-create the breaking with plastic.  Furthermore, the Sears knock off had incorporated these differences within their bone with no proof of independent creation.

In July of 2008 Lucky Break was awarded $1.7 million.  And now the company is looking to rebound as sales throughout this long legal battle had cut in half.

Many inventors deal with the fear of idea / invention theft to a point of paranoia.  In post talking about the opportunities and risks of partnering with a fellow inventor I pushed those fears away.  Perhaps that was unfair of me, especially when I remember that several years ago I was afraid to e-mail my ideas to my mentor.  Even typing them in my computer gave me shivers, what if someone steals my laptop, what if I get hacked, what if…  I was graciously guided through my paranoia and filed a provisional patent.  I worked hard on the idea for a year straight, and at the years end, the provisional patent didn’t cover what I believed to be the most important aspects that we had developed over the year of the invention.  I had filed too early, while my invention was still an idea.  Although I could have refiled a provisional at the years end, and at that point I even had the funding to get a patent I made a conscience decision not to pursue further IP.  I did that because the patentable technology that we had uncovered one month before I needed to file a utility was still unproven and could have easily be held as a trade secret.

So I understand the fear from a personal perspective, but still don’t know if it is rational.  A few google searches later looking for evidence of idea / invention theft left me wondering, is this it?.  If my idea got ripped off, I would be all over the web bashing the thieves and ruining their online reputation displaying my evidence and preparing for a demonstration.  Even if I didn’t have the evidence or money to bring my complaint to court, I would still warn other inventors of the questionable ethics of the company that stole my idea. Interestingly enough, I filtered out a lot of theft cases from Hollywood TV and movies.  My results are as follows:

1.  Davidson Inventregration Invention submission company stole my idea .  Honestly I was somewhat surprised.  Not because Davidson is a reputable company, which they are not but mainly because they tend to just take advantage of ideas until your pockets are empty delivering grade school level results. And perhaps dishonest Davidson will the right thing as their new ‘commitment’ states. But if I was going to send my idea to a company I surely would have done internet research trying to attain some information on their legitimacy, (at that time there was a lot, some under different names but all connected) Do Your Research First

2.  Barb Davis at Black and Decker stole my idea.  I was surprised that Black and Decker would stoop to such levels.  The inventor had a video and crude prototype, sent it around to companies, got rejected and then ripped off.  Without a patent, he is wondering what he can do?  Patents a strong means of IP, but there are others.  In what condition is his inventor’s notebook?  He could (if he had the cash) bring Black and Decker to court with his notebook, prototype and video as evidence.  Always Document Yourself

3.  The technical invention described in the right text was sent off to two companies looking for a partner received two rejections, only to have brought them to market later on.  This brings and interesting question about e-mail evidence in the digital age, how much will it be trusted in an IP proceeding?

The other item to note is that all of these searches brought back tons of pages for patent attorneys.  The intellectual property industry seems to love and build on the public epidemic that inventions and ideas get stolen everyday.  I tend to believe what Bob Hausslein says, “people want to steal proven products and make rip offs, not develop a new idea into a product.” I was expecting hundreds of pages on the web with pictures, drawings and videos (any type of evidence) telling stories of confidential meetings betrayed ending up with products on the shelf.

Perhaps the current reality is not what is driving the fear, but instead the historical stories that we have been told throughout our lives re enforced by Hollywood’s trailer of Chain Reaction. The fear of being taken advantage of like Farnsworth’s tv by the idea thieves we typically call inventors. One article titled 5 famous inventors (who stole their great idea) recited 5 stories I had heard growing up about someone’s dream being taken and used with great success only to leave the original inventor alone and broke in old age.

• The first was Galileo Galilee, who did not invent the telescope, Hans Lippershey did
• Penicillin’s credited creator Sir Alexander Flemming was instead tested by Ernest Duchesne but was considered crazy.  Flemming did re-discover (many years had passed) penicillin, but didn’t see the potiental and moved on.  Other scientist like Howard Florey, Norman Heatley, Andrew Moyer and Ernst Chain where in the lab mastering and mass producing penicillin
• The telephone by Alexander Graham Bell, or maybe not…  Antonio Meucci
• Einstein fathered the theory of realitivity… well he publicized Henri Poincaré’s paper (with no credit given to Henri)
• Edison and his light bulb, motion picture and others, or more accurately Nikola Tesla’s, Jean Foucault, Humphrey Davy, J.W. Starr’s inventions

Conclusion First, point to take notice of the difference in number of historic vs. recent idea thefts.  This is not to say that idea theft occurs far less now, but it certainly has changed. Now it is big companies that get to know your invention before you are really ready.  Most are cases that the inventor doesn’t have a patent.  But most importantly IT DOESN”T HAPPEN VERY OFTEN.  And if it happened to you, like it happened to Flashpoint Development many years ago before we did consulting.  Do as we did and keep on going on.  If you are in business grow and grow, you might end up like on top like Buchwald Idea theft may not even be a bad thing, get up and invent harder, smarter and faster than before.

One of my professors who used to run a product design house (that did no consulting, only internal projects) had patent days.  During these days he would bring the IP and Designers together and design around the wording and drawings of patents.  He once said there wasn’t a patent his team couldn’t get around.

Closing remarks from Angry Filmmaker Although aimed at the movie industry, it is well said…. It just seems to me that more people are concerned with having a hit movie or writing a best seller that they don’t take enjoyment out of the writing itself. Long ago I gave up the idea of having a hit. It doesn’t matter. Yes, it would be nice to have some money, but I truly enjoy the work. I love what I do and that means more to me then worrying about if people are stealing from me. It’s certainly not going to stop me from being creative. I have something that those people who steal will never have. Creativity.

Doing it alone is tempting.  I found this on an old Google Answers post the other day:

I have a patent and trademark for a plastic trash bag clip. It is designed to be extruded in plastic, then cut by machine to size. I have spent about $10,000 on legal fees, and $8,000 traveling to Monterrey, Mexico and paying for extrusion of prototypes, fabrication of die, etc. The samples were very disappointing.

I am disinclined to spend thousands more on better prototypes, and don’t trust “invention submission” scams. How can I license or market a patented product that is, I believe, very marketable?

My heart breaks when I hear or read stories similar to these.  The stories often talk about bad manufacturers (like above that make bad molds), prototype manufacturers who go out of business and lose design files, patent agents / attorneys that file worthless patents and it goes on and on.  These upset me because so much money is gone and essentially there is nothing to show for it.  In this case, the inventor has a “disappointing” trial production run, an essentially worthless 21 page patent and a valid fear of “invention submission” companies.

Manufacturing: First let me say that many times the first run of a production mold doesn’t come out quite right.  Most molds are very changeable for relatively less money.  Second this is a common issue, a first time inventor has found a great manufacturer but there is no history.  Without any past experience with the manufacturer (it is not just manufacturing but any outsourced product development task) the inventor cannot know if this is going to work out.  Thirdly, this is a clear cut case of not a lot of manufacturing knowledge.  The process should be a straight plastic injection mold.  Without a doubt this would have produced a better prototype.

Patents: This inventor (as many do) patented their idea very quickly.  It cost a lot and the inventor felt that it was worthwhile because now he has protection and owns the idea.  However, a quick look at the patents in the area of invention show that it wasn’t really protected.  Why, because a different inventor filed a year later and got a  patent (although design) on a very similar trash bag clip.

Invention Submission Companies:  A fear of these companies is very healthy, although I hope that we have shown that a fear of anyone who you haven’t had successful interactions with previously including manufacturers and patent agents / attorneys is also healthy.  Scam companies recently have been very publicly documented and even sued.  There are many places that can help you find out which ones are bad and which ones are good (yes there are good ones out there).   A few resources for weeding out the bad ones are: The National Inventor Fraud Center and the Rip Off Report,  I can speak for BIG as a good guy and I have heard good things about Pelham West Associates. Always do your research, get references, there is lots of information about there about evaluating these types of companies.

DIY: I personally have developed products alone, without outside help from a company like Flashpoint Development providing product development services.  The results were not great, like the inventor in this post I spent a lot on design, prototyping and intellectual property,  I spent several months and made progress, but I would not call it a success.  Eventually I ran out of time and money and the idea stalled out.  Having had this experience of not wanting to involve (pay) consultants, I completely understand this point of view.  Unfortunately, it generally turns into a learning experience similar to a semester of college in expenses.  When I hear about these stories I cringe because I get flashbacks.  Having seen the end result and hearing the stories, if I was to invent again for the first time (its hard to travel back in time) I would be more scared of DIY than getting product design & development help.