Anthony Verna and Wil Jacques visited Toy Fair 2020. This is Anthony's eleventh Toy Fair and Wil Jacques' fifth Toy Fair. They opened the phone and recorded their thoughts for intellectual property trends they saw from the smaller businesses.
Anthony Verna at Toy Fair 2020
Anthony Verna:
Welcome to the “Law & Business” podcast. I'm Anthony Verna, Verna Law Managing
Partner.
Chances are that if you're listening, you already knew that.
I am here at toy fair, 2020 with Wil Jacques, my patent
agent.
Wil Jacques:
Good afternoon listening folks! Great to be here.
Anthony Verna:
All right, well, so let's talk a few items, a few big idea
items for intellectual property and toys.
One item that I noticed from maybe a patent side is the fact
that there are plenty of companies that have patents filed, or at least they
told us they had patents filed, but the patent is number is not noticed on the
packaging. So let's talk a little bit about what that means for them.
Wil Jacques:
Yeah. Kind of disturbing, actually, but, as you said, a lot
of companies claim that they had a few utility patents that were filed and or
issued.
But, the designation of those patents or markings were not on the packaging
that they had. And what I wanted to bring out to them is that it really plays
significantly or importantly in whether or not they were able and how much
damages they might be able to capture from market infringers if in fact they
never notified the market that the product that was being copied in fact had
patents on it.
And so that's the whole idea of marking your product, with your
patent numbers: so you send a signal to the market that if you copy this
particular product, you're copying one that's already patent protected.
Anthony Verna:
I would also be worried from an infringement standpoint
that, without giving notice of the number that a defendant would possibly have
a complete defense to patent infringement anyway, because without that
particular notice.
Wil:
It is onus on patent owners to notify any infringer, of copying
or infringing on their patents.
I mean, there's, there's no patent police, you know, there's no one that goes
around to see whether or not people are actually infringing on your patent is
actually your responsibility to, to police that. So, you know, there are many
strategies that you need to employ. But one of the first strategies is you
can't extract damages from someone until you notify them that they are actually
infringing on your patent.
Part of the marking of your product is a notification to the
marketplace that you have a patented product.
Anthony Verna:
And, remember, “There is no patent police” is a trademark of
Wil Jacques, because if you listen to this podcast you have heard “There is no
patent police” at least 10 other times from, from Wil in past episodes.
So let's talk about the utility versus design issue.
We spoke to several companies that said they had design
patents, but I think you and I probably wanted to try to push them a little
further to see if that design actually had utility.
Wil Jacques:
Yeah. Actually, it was very interesting conversation with a
number of people that we talk to and, you know, again, in full disclosure and
without disclosing what they were, telling us there were a number of companies
that had what we thought to be utility features for their toys, their products,
their inventions.
And for whatever reason they never sought, they never looked
into the opportunity to exploit the potential value of those utility, of
potential utility claims and those patents. And I was kind of surprised to hear
that there were various excuses, some around cost and what it would potentially
cost to do something like that, which can be somewhat erroneous. It's almost
like asking how much is a brain surgery going to cost before you get, before
you get the x-ray.
And so, you know,
