We should note, up front, that this article is meant purely for broad information purposes and is not legal advice. You should always consult the appropriate legal professionals for guidance related to your own unique product development situation.

Designing a new product, whether on your own or as part of a team, can be equally exhilarating and exhausting. The exhilarating part is the creativity and brain storms that can lead to novel solutions to problems. The exhausting part is pretty much everything that follows the creative part: testing, documentation, sales, accounting, distribution, and legal. Yes, legal. Because you don’t want to put in all those hours and end up losing your grand idea to another person or organization. History is full of examples of product idea “appropriation”, including the laser, the light bulb, and the television. Any legal issues related to your new product should be explored as early as possible in your design process to avoid issues and expenses later on. But what are some of the things you should know to protect your great idea, minimize any legal liability that may arise from it, and control it into the future. Whether your idea is just an incremental step, a next generation product, or a breakthrough design, you have some work to do.

The First Steps

Liabilities or ownership issues arising out of product design usually fall under several categories. In noparticular order, these may include:

• Patent & Trademark issues
• Defective Design & Product Safety
• Protection of Intellectual Property
• Regulatory Requirements

Let’s take a brief look at each of these, realizing that information on any one of them probably fills several shelves in a modern law library.

Patent & Trademark Issues

This really boils down to a simple question that is not always simple to answer. How close is your design to an established product in the marketplace? It is important to get an answer to this early on, so you don’t waste your time on an idea that someone else has already had.

A patent protects inventions or processes, and generally lasts for 20 years with payment of annual renewal fees. A trademark protects brands, logos and slogans related to a specific product. Individual trademark protection can last forever, as long as it is renewed every 10 years. Not to be confused with these, a copyright protects original writing or authorship (words, music, art).  The point that should be made is that once these various legal protections are granted to a new product idea, they must be defended by the people or organizations that own them in order to have any force in the market. That defense takes time and money, but keep in mind that if someone goes to the trouble of getting a patent, they are probably prepared to defend it against infringement.

In short, you’ll want to do a patent search (possibly including patent applications), and a trademark search for names and designs that may be similar to your own, and proceed with caution.

Defective Design & Product Safety

It goes without saying (but we’ll say it anyway) that your product needs to work as claimed, and cannot harm people, animals, or the environment. The product must be safe for use by its intended audience. If it doesn’t satisfy these needs, it can leave you open to legal liability that may not only stop your new product in its tracks, but also hinder your business from moving forward. 

Design defect and product safety issues can cover either a fundamental flaw in the basic design of the product, flaws in the individual components used in the product, or defects in manufacturing or

assembling the product. Most design defect lawsuits are raised against the manufacturer responsible for the product design. And while disclaimers or warning labels on products are often used, in most cases they are not legally binding.

Protecting Intellectual Property

Since you’ve gone through the rigorous intellectual exercise of inventing a great new product, you want to tell everyone, right? Or possibly even license it to a larger company that will manufacture and sell it and give you a royalty? Well, not so fast. Before you set up patent protection, be aware that your design can be appropriated by just about anyone, including people you present it to whom you might want to have as investors. You can try to avoid this through several means, including filing for a provisional patent, which is a way to protect your idea for up to 12 months and claim “patent-pending” status.

You can also use confidentiality and non-disclosure agreements to protect yourself, avoid joint

ownership agreements with investors or advisors, or just plain divulge as few facts as possible about your idea. Playing your cards close to your vest may be your best strategy.

Regulatory Requirements

If your new product idea may be directed to a consumer, industrial, or public health user base, it may fall under federal or state regulatory guidelines. If you think it may have international applications, then it may be restricted by numerous country or regional guidelines. Either way, something you envision, say, for the healthcare market, or the transportation market, or the aerospace or pharma markets may be subject to restrictions on not only the components used in the product but also the manufacturing systems used to produce it.

Regulatory requirements are not something you can avoid or appeal. If you’ve developed a new sensor idea that might add value to operating room equipment, it will need to meet requirements not only for what it is made of and how those components were manufactured, but also how the product itself is made, tested, installed and maintained.

In short, the regulatory environment is designed to protect the ultimate audiences who might be using a product. An early search of regulations, and even industry standards, that might apply to your new product would be a smart move.

Summary

If you are part of a large organization, the legal aspects of product design may not be something you have to consider until your compliance department flags your new idea and you have to change its

specifications. On the other hand, if you are new or going it alone in the product design game, you should be aware that coming up with a new idea may be the easiest part of what is in store for you. New product design, engineering, manufacturing, marketing, and quality support issues can all arise at any time. It is good advice to learn as much as you can, as early as you can, about how your product will be used and what might happen to you if there is a problem.

One other factor to consider is that, depending on the uniqueness of your new product idea, it may also be difficult or impossible to predict legal issues that might arise from legislation that could be enacted or changed to regulate your new idea. In this regard you are flying solo at low altitude in dense fog. Good luck.

For a corresponding take on the legal risks of new product design, you might want to visit our creative friends at CircuitBread here: So, You’ve Got a Great Product Idea. What Legal Issues Should You Consider? You can also find their other educational content at www.circuitbread.com.   Whether you are a part of a large company or a lone wolf, you want to avoid unanticipated legal risk in any part of your product design process. The rewards can certainly be worth it.