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Blowing away the competition (at the right time)

Friday 20 May 2016

Dyson’s recent launch of their new hair dryer followed 50-months of ‘secret’ product development.  Given Dyson’s commitment to protecting its intellectual property (IP), how ‘secret’ could Dyson’s work have been and could others have predicted when the product launch was likely to occur?

This article looks into the Dyson hair dryer example in more detail to examine how the registration of patents, designs and trade marks affects product development timescales.

The Dyson Supersonic® Hair Dryer

Dyson has built a business on reinventing household appliances and their new hair dryer appears to embody the same ethos.

According to Dyson, conventional hair dryers are heavy, inefficient, loud and do little to prevent hair damage.  The promotional materials for the Supersonic® hair dryer therefore claim the new design offers improved performance and usability, albeit with a market-leading unit cost.

Dyson is reported to be ready to release the product for general sale in the UK next month.

Secrecy vs Protection

Although Dyson would have relied on its employees to keep development work confidential, innovation espionage and unplanned disclosure can still be a threat.  Seeking the registration of IP rights at an early stage can therefore help to bolster confidence.  However, there is a difficulty in knowing when you have created something that can be protected and when protection should be sought.  This is particularly important while work is ongoing because there is a risk that effort is wasted on protecting partially developed solutions which actually differ from the finished product that goes to market.

A single product, like the Dyson hair dryer, is likely to contain many features protectable by IP rights.  Patents protect inventions, design rights protect the appearance of a product and trade mark rights protect the brand.  For a company like Dyson, all forms of IP are likely to have been considered before bringing a new product to market in order to best safeguard the future market position.  Each time a feature is identified, an application for a registrable IP right could be filed.  But how soon is too soon?

Each design iteration contributes to shaping the final product.  However, the essence of the final product may be embodied at a very early stage and only finer detail will change going forward.  It is therefore arguable that, as soon as the essence is discovered, registrable IP right protection should be sought.  At this point, a clock is set that counts down to the date of public disclosure.  In Dyson’s case, the publication of the first UK patent application, around 18-months after it was filed, generated media buzz around Dyson’s interest in hair dryers.  This would have alerted competitors and affected Dyson’s technical advantage.

The Patent Springboard

Although the 18-month publication date is unavoidable, there are ways to limit what is disclosed.

Shortly after filing a UK patent application (within approximately 6-8 weeks), the applicant’s details (i.e. name and address), title of the patent application and filing date are published on the UK patent register.  At this point, a discretely named title, which may need to be amended for publication, can give competitors little to chew on.

Furthermore, sticking to technical detail in the patent application, without including any aesthetic aspects of the final product, can help to minimise disclosure to competitors.  Even conceptual design drawings are not recommended to be included in the patent if the look of the final product is important.

In any event, the patent springboard gives applicants an 18-month head start over competitors, which, for many types of products, is likely to be enough to help establish a lead in the market and develop an associated high market share.

How Dyson carved out a Safety Net

A simple keyword search for “blower” and separately “handheld appliance” in the European Patent Office database currently returns around 15 relevant UK patent applications for the Dyson hair dryer, 8 of which date back to 2012, and 11 of which are now granted.

Looking at UK patent application GB2500802, which was filed on 30 March 2012, the drawing in Figure 1 (below left) embodies the aesthetic appearance of the product even though the claims seek to protect technical features relating to the fluid flow path within the hairdryer body.  To protect the aesthetics, Dyson filed three European design applications, RCD001384796-001 (below right), -002 and -003 on 26 September 2013, which appear to more closely represent the final product.  To avoid the patent publication becoming citable against the designs, Dyson made sure tthe three European design applications were filed before publication of GB2500802 in October 2013.

1*Figures from Dyson’s GB2500802 Patent (left) and Dyson’s European Design RCD001384796-001 (right)*

In addition, Dyson deferred publication of the European Designs by 14-months from filing in order to prevent competitors from seeing the designs until November 2014.  Interestingly, Dyson could have deferred publication for a maximum of 30-months, by chose not to do so.  This would have been very convenient as the disclosures would have been delayed until around 29 March 2016 (see chart below), almost coinciding with Dyson’s launch date.

2
*An example IP filing timescale as used by Dyson*

As shown, in the above graphic, Dyson then filed a second round of patent applications in 2013 before publication of the first round.  This ensured the first round of applications were not prejudicial to inventiveness of the later filed applications.

Dyson’s approach to patent and design protection in the hair dryer example, suggests that a timescale of 48-months from the earliest patent application filing date is sufficient to launch a consumer product.

Market Rumours and Consumer Concepts

Oddly enough, one of the risks of delaying the disclosure of the final product, particularly for high profile companies like Dyson, is that consumer speculation and conceptual work from unrelated members of the public can accidentally overlap with the concepts that the company is working on.  This problem regularly affects the consumer electronics giant Apple, whose customers are clearly very eager to see new product launches and are keenly interested in the design direction taken by the company.  Although disclosures of this nature may not lead to production of prototypes or any kind of physical product by the members of the public posting on the internet, they can still potentially limit the scope of later filed design rights.

For high profile companies, there may therefore be an argument that publicity should be kept to an absolute minimum until close to the product launch to avoid troubling disclosures stemming from consumer speculation.  Fortunately for Dyson, anticipation of their product development direction does not appear to have been damaging.

On the upside, most manufacturers are likely to view such consumer anticipation as a good source of free marketing.

And what about Dyson’s trade marks?

Trade mark registrations are not affected by the strict novelty requirements of patents and design registrations and are typically published very soon after filing the application.  The registration of trade marks can therefore be left until relatively late in the product launch process to allow the brand concept and identity to be as current as possible.

Looking at the register of UK trade marks, Dyson filed three trade mark applications on 15 April 2016, just over one week before the product launch:

(i)         DYSON SUPERSONIC (see here);

(ii)         SUPERSONIC (see here); and

(iii)       3 (see here).

The task of choosing and developing a trade mark can therefore be ongoing and a rush for early protection is less important.  Furthermore, by opting to register the trade marks just before the product launch, Dyson reduced the timescale for cyber squatters to set up websites including the product name.

Summary

Typically, IP rights are business tools that help to safeguard a business’s interests, although the legal framework for obtaining some IP rights does include an obligation to disclose sensitive information.  Although careful consideration of what IP has been created during the product development process must be made, the question of when to engage in protection activity is also key.

In order to stay ahead of the competition, the disclosures that will stem from filing for registered IP rights can provide useful markers on the timeline between conception and release of a product.  In the Dyson example, 48-months from the first patent filing appears to have been sufficient.

In summary, the Dyson example teaches us to:

(i)         file patent applications early to capture the essence of technical aspects of a product;

(ii)         file further patent applications before 18-months to avoid self-collision;

(iii)        file for design protection before the 18-month patent publication date; and

(iv)        defer design publications as long as possible in order to avoid leakage that would otherwise impact on the product launch.

If you would like to speak to one of our consumer products experts, please click here.  Otherwise, do not hesitate to consult your Appleyard Lees attorney for more advice about using IP to safeguard your business interests.

*The term ‘Dyson’ refers to the Dyson group of companies, manufacturers of electric domestic appliances*

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