What the fidget?
Who remembers Chatter-Rings, the novelty craze of the mid-1990s? Kids everywhere, walking down the street frantically spinning their Chatter-Rings, along with the accompanying noisy jingle.
The story begins…
Fast forward to 2017 and the latest fad sweeping the world is the Fidget Spinner™. Retailing at around $10, thousands of these have been sold in New Zealand alone. The Fidget Spinner™ is a flat, three-lobed moulding of plastic with a ball-bearing race at its centre. Gripping the hub between thumb and forefinger, the user spins the Fidget Spinner™ around and around and around… and so on. More sophisticated versions include ball-bearing hubs on each lobe for even more spinning fun.
Somehow or other, I have managed to end up with a Fidget Spinner™ on my desk and I can attest to the addictive nature of the device. I spent an entire 10 minutes in deep conversation with a colleague, unthinkingly spinning away, before he pointed out that I been doing so for the entire time we were talking!
The inventor of the Fidget Spinner™ has attracted a lot of attention in recent weeks with media reports highlighting her lack of financial success in exploiting her invention while other, larger, companies are reaping the rewards. However, not all is as it seems, with some common misconceptions around patent law coming into play.
The back story
To give some context to these misconceptions, some back story is required. The inventor, Catherine Hettinger, filed her patent application for a “Spinning Toy” back in February 1992 and it proceeded to grant in 1997 as United States Patent No. 5,591,062. However, when it then came up for renewal in 2005 (patents in most jurisdictions will require periodic fees be paid to the relevant patent office to keep the patent in force for its term), Hettinger could not afford the fees (about US$400) and decided to not pay it.
This is an understandable decision given she has stated her finances were limited at the time. Although she had sold several examples and approached a toy manufacturer, there was no meaningful interest in the “Spinning Toy”. One should applaud her for being pragmatic and to her credit, she apparently is not bitter about the present situation.
However, the main consequence of the decision to not pay the required renewal fee is that the “Spinning Toy” fell into the public domain. This means anyone could exploit the invention that is the subject of the patent without having to compensate Hettinger.
But even this is not the full picture. The recent Fidget Spinner™ craze began in 2016. Yet Hettinger’s patent, assuming she had paid the renewal fee due in 2005, would have reached its full term and expired in 2014. She would have been unable to leverage her patent to take advantage of the current craze anyway.
Furthermore, nowhere in the specification that describes the “Spinning Toy” is the use of a ball bearing race disclosed or even considered. Instead, the claims of the specification describes a disc with a central raised dome, the underside of which is hollow. The user would place their finger (or pen, stick or the like) within the dome and then grip or contact the edges of the disc to get the entire toy spinning about the finger.
What this means is that it is quite likely that the Fidget Spinner™ sitting on my desk, with its ball bearing race, would not have even been covered by Hettinger’s patent. The maker of the Fidget Spinner™ would not have to pay a licencing fee or royalty to Hettinger; why would they if the patent did not cover it?
One of the key differences between the Fidget Spinner™ and Hettinger’s invention is the use of a ball bearing race at the centre. This may well have been a patentable improvement on the original device. If whoever came up with this idea did file for a patent, then this story would not be one of a missed opportunity but a great success for that individual!
Here ends the story
So, to summarise:
- patents need to be periodically renewed to keep them in force;
- patents cannot remain in force indefinitely;
- once a patent lapses or expires, anyone can avail themselves of the invention claimed in that patent;
- the claims of the patent need to be assessed to determine whether it relates to the product of concern irrespective of what an inventor or anyone else alleges; and
- Finally, if someone does have a current patent that would cover the Fidget Spinner™, they should pull finger and start leveraging it!
Jared Millar is a Senior Associate in the Hamilton office of James & Wells, a national intellectual property firm. If you are interested in finding out more about protecting your intellectual property, contact Jared.
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