I had to attend the Struktur conference vicariously this year, but I had the great fortune of attending this creative summit for active, outdoor and urban design last year. The organizers had approached me because of my TED.com talk on the lack of copyright protection in the fashion industry. It turned out that the active wear industry was facing a potential sea change. The news was getting out that Lululemon was aggressively pursuing design patents for their designs, effectively installing barbed wire around previous open pasture in the design community. The Struktur community wanted to know: what the hell is a design patent, anyway, and should I be getting some of them, too?
Once I knew this, It took me about zero seconds to agree to give a talk on the topic (here’s the video). I’ve been impatiently monitoring the wearable technology sector for many years now, where I see a very exciting (and lucrative) future for apparel designers. One key reason: fashion designers may not have copyright protection – which means they don’t own their designs – but they are eligible for patent protection if they can inject some unique utility into their design.
I can’t believe how long it’s taken for high-end fashion designers to get into the wearable tech game. But slowly and surely, it’s finally happening. The wearable-electronics market reached $8 billion in sales in 2014, and is expected to hit $20 billion by 2017, according to research firm Futuresource Consulting. I expect the sector to explode once customers realize that they should be getting tremendous utility value with their clothes – not just cute looks.
Editorial about wearable tech tends to be pretty snarky, but even cynical reporters are starting to warm to the idea. Athos now offers workout capris that alert you to your workout targets and tell you whether you’re favoring one leg over the other, which can lead to injury and inadequate work outs.
Emel + Aris have created a luscious cashmere wrap that’s actually a toasty electric blanket. Iris Apfel, icon of all who hope to age in grand style, has developed WiseWear cuffs that can send a message to an emergency contact if you should get in trouble. And while I’m no fan of Ralph Lauren, the Ricky bag is kind of genius, with its built in phone charger and LED lights that switch on when you open the bag.
So all of these contraptions are eligible for utility patents, which cover inventions that are novel, useful and non-obvious. So what is a design patent?
In short, design patents cover useful products, but not what makes them useful (that would be covered by a utility patent.) The biggest challenge for apparel designers is that it has to be “novel” and “non-obvious.”
Talk about a judgement call.
A design patent is a very quirky thing. You can only secure it for a useful product, but it doesn’t cover anything that makes the product useful. That is, it only applies to how something looks. It often applies to the shape of a product or some surface ornamentation.
The goal with a design patent is to identify & isolate some new, non-obvious element of the design that a designer suspects competitors might want to knock off.
So, in this example, all that Nike wants to protect is that weird springy thing in the drawings on the left:
The rest of the shoe design is basically dotted lines, which means that the infringing product doesn’t have to look anything like the shoe drawn here – it could be a knee high hiking boot, in fact – but if it incorporates this weird springy thing here, like it does in Walmart’s design (on the right) – then Nike will have a case.
Jimmy Choo used the same approach with these sunglasses which means that he could nail anyone who uses little rectangular oblong holes in the sides of sunglasses.
Novel and non-obvious? Um, I guess I would beg to differ.
What apparel designers are hoping to do with these design patents is discourage knock-offs and create a monopoly on a design for 14 years.
That sounds pretty awesome until you realize that if one person has a monopoly on certain designs, then that means that other designers have monopolies on a bunch of other design elements – maybe as minor as a little oval hole in the arm of some sunglasses. In order for a designer to make sure that they’re not infringing on someone else’s design patent, they would have to do a review.
The standard process for getting a design patent can take a while – 15 months is pretty standard, unless an expedition fee is paid, which can bring it down to five months. Because of the seasonal nature of the apparel industry that in itself can be a deal breaker.
But some designers have decided that it’s worth the trouble, especially if they think that they’ve created a distinctive design element that will bridge seasons.
Alexander Wang, has been trying out this strategy, and his experience reveals the weakness of design patent protection.
He was able to convince the US Patent Office that this was a new, non-obvious design:
But the ploy appears to have been ineffective, since cheaper retailers, including my (once) beloved Karen Millen, have shamelessly knocked-off the look without getting caught. They were able to make their bags just different enough that they were not considered infringing.
But just because you can copy, does NOT make it a good idea (I haven’t bought any Karen Millen products since I learned this). Respect is crucial in this industry and insiders know whether you’ve got something unique to offer, or not.
Lululemon has been very much in the papers lately because of their aggressive use of design patents. Last time I checked they have 33 design patents. They sued Calvin Klein over their Astro Pants, and when they tried to nail Hanes & Target over a tank top, Hanes fired back saying there was nothing novel or non-obvious about the design. They settled out of court.
But even hard-core fashion copyright enthusiasts are leery about using design patents in this way. One fashion copyright activist, Susan Scafidi, actually called the Patent Office to see whether they had anyone with expertise in apparel in house. Since the reviewers have to decide whether a design is truly new and non-obvious, then expertise in the area is essential. They said they did not. And so Scafidi is a little worried that things will get ugly when these cases creep their way into the courts, where judges may decide that these patents never should have been issued in the first place.
One of the arguments that I believe derailed Diane von Furstenberg’s effort to secure copyright protection for fashion designs, was that members of the House Subcommittee realized that it might be very easy for some people to game the system, filing copyrights on designs that they never intended to create, with a sole purpose of suing people who infringe on the designs. The representative from Silicon Valley was on this committee and she was intimately familiar with the patent troll problem. Perhaps this is why the bill has not been introduced to the House floor yet.
And this is where the rubber really meets the road. As mini monopolies on various designs multiply, designers who may enjoy the protection of some element of their own design now have to get into the serious game of making sure they don’t infringe on anyone else’s monopoly. This can take time and money, and as I have argued in the past, would most likely lead to less innovation rather than more.
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