The Perils of Patenting Playthings

It's a popular pastime, popping the perpetual pockets on a pop-it. But it also represents the perils of patenting playthings. (I do enjoy alliterations, but I'll cop to going overboard there.) If ever you have a truly innovative idea that is fairly simple and easily copied, investing in some kind of IP protection really is beneficial.

During the spring finals study break, Fondren Library gave students stress relief goodie bags. One of the items some included was a "pop it" sensory toy. It consists of a sheet of silicone molded with indentations that can be infinitely "popped", because they're pressed down, inverting repeatedly. Some, like the one I nabbed, make a satisfying little pip sound. 

A pop it, being modeled by my very grumpy kitty

I wondered aloud if the pop it was patented, because if so, I'd love to add it to my collection of toys I use to teach patent searching. Multiple people immediately responded that they were sure it was.

Now, if you are a faithful reader, you might recall I have had doubts about whether or not a product was patented before. I suspect that because most people don't know how challenging--in terms of cost and processing time--it can be to obtain a patent, that they simply assume most products and inventions have one.

My doubts, however, were valid this time. After a fair bit of searching, I was unable to find any patents that matched the basic pop it concept predating its sudden popularity. And even those found were generally design patents or utility patents stuck in the application phase.

I did some general internet searching next, thinking I might be able to find a manufacturer or some kind of company name to use in a more defined search. However, I learned their history went back further than I expected, and was a sad tale of what happens when people fail to protect their IP.

Evidently, the pop it concept originated with a couple in the 1970s, who is most famous for creating the game Guess Who? Since this was before the silicone used for today's pop its was available, the original versions were less than perfect and never put on the market. When it was finally manufactured for sales, pop it didn't meet with much success. I don't want to paraphrase the full article here, so if you'd like to know the full story behind the concept and its original intended play, please visit that.

My main point is that when it was (utility) patent eligible, the inventors did not pursue any IP protection. Now that it has existed for decades, and is suddenly in high demand, it is no longer patentable. It can be hard to predict the market success of an invention. Sometimes, the concept won't be appreciated by current audiences, and the expense of a patent may not pay off. Nonetheless, if they had patented the original concept and then sought a new patent when a better material was available (I'd argue that the different kind of plastic used to make it would be different enough to potentially qualify), their company and family might have made an enormous fortune. Now, it's too late.

Yet according to the linked article above, the inventors are not upset about missing the riches. They are happy to see their invention find its way into so many hands.