A fidget spinner (by Tech2025 via Wikimedia).
Lawyers everywhere, take note. The “must-have office toy of 2017” has been identified by Forbes, and it looks very familiar to anyone with grade-school kids. The item? A Fidget Spinner, a spinning toy available in all shapes and sizes, and at all price points as well. Kids everywhere seem obsessed, and there is a flourishing market for these toys on schoolyards — at least in Brooklyn, but likely in many other places as well. The perhaps apocryphal backstory of the Fidget Spinner is that they were originally developed as a therapeutic item for attention-challenged kids, but regardless of their origin story, there is no doubt that these items have since entered the mainstream.
The appeal is not limited to kids, as Forbes notes. In fact, there are no less than three concrete benefits enumerated for these seemingly uninspiring gadgets, which apparently (1) provide an outlet for an office worker’s fidgety energy, (2) help start productive conversations with colleagues, and clients and (3) help indulge the natural itch to “collect them all.” The latter is a challenge, however, since the demand for these toys have led to lengthy shipping delays over the last month. (From a check on Amazon, it does appear that more varieties are immediately available.) But that has not stopped desperate parents from overpaying for available stock in the hopes of sparing their young’uns the ignominy of being the only spinner-less kids at recess.
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One of my own kids, who is fortunate to have a pipeline of available product (no, he won’t betray his sourcing secrets), has been running a quite profitable business selling spinners direct-to-student at school. His business has been helped by the zeal with which teachers have been confiscating these toys whenever they appear in a classroom — leading to new orders from suddenly spinner-bereft classmates. Maybe he should be paying the teachers a commission. While these items are all the rage at schools, I wonder if these spinners have taken off at law firms as well. I can easily envision bored associates and partners at practice group meetings happily spinning these toys on their fingertips, as they listen to the latest case law update from one of their colleagues. While that may or may not be happening, I am also silently rooting for the first story on these pages of an attorney benchslapped for spinning in front of a less-than-amused judge.
Desire for funny stories aside, how does an intellectual property lawyer view these types of fads? My first inclination was actually to check to see if there was a patent on the fidget spinner. Even though it seems an obvious and quite simple invention, if there were someone with a valid patent on it, that could give them a huge advantage in the market (if they were willing to actually enforce their patent, that is).
Alas, it appears that the patent on this now-hot spinning toy was filed in 1997, and went abandoned. Into the breach have come the hordes, racing to produce different kinds of spinners to meet the market demand. It is actually an interesting example of globalization in action. A fad item takes off, and the great international (mostly China-based) production machine kicks into gear, offering dozens of varieties of the hot item to customers in the U.S. The first U.S adopters are usually those willing to brave Aliexpress. Meanwhile, the manufacturers also start selling directly to U.S. importers, who post their stock online or move it to established brick-and-mortar retailers. The turnaround time is stunning, and a testament to our linked economic realities.
While the main utility patent on the fidget spinner is not in force, considering the nature of fads like this one, there is a good chance that the market would be flooded even if a valid patent existed. In my experience, many foreign-based factories producing gadget items or even staple consumer products operate as if U.S. patent rights are not their problem. And patent issues often fail to arise for these manufacturers, with patent holders tending to focus their energies on trying to block importation and sale of infringing items here in the States. Depending on the resources of the patent owner, the options for cost-effective enforcement may actually be quite limited. As a boutique-firm patent lawyer, helping clients develop enforcement strategies that are commensurate with their financial wherewithal and appetite for litigation is a frequent and welcome challenge.
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At the same time, IP lawyers at small firms are also often tasked with helping clients round out the IP protection available for their inventions. Imagine, for example, that a client managed to develop an improved fidget spinner, or hit upon an attractive design for the item that has commercial value. A skilled IP lawyer would be able to determine what combination of utility or design patents, trademarks, or copyrights is appropriate. One key consideration would of course be cost. A second, especially relevant when it comes to fad items, would be timing. If the entire half-life of the fad is six months, for example, there may be little value in pursuing a utility patent that most likely would not issue for a year or two down the road.
Ultimately, counseling clients on how to best protect their inventions, or exploit the IP that they own, is a key component of a small-firm (and for that matter, Biglaw) IP lawyer’s practice. At the same time, fads like fidget spinners can present special challenges, due to their fast-moving nature, and the likelihood that foreign manufacturing is involved. The creative IP lawyer is happy to rise to the challenge, however, whether the product is a spinning toy or a more complicated piece of machinery. As for me, I am happy to have gotten through drafting this column without taking my fidget spinner out for a spin. Mine was a gift from my wife, and has a cool faux-wood veneer. Just because IP lawyers know how to analyze the legal aspects of fads doesn’t mean we can’t play along with them as well. Happy spinning to all.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.