- The Intellectual Property Rights of Others
A possible hurdle or barrier that many new products should address early on in the development stage is the existence of intellectual property rights belonging to others. A patent search should be done to see if the product being considered will infringe any unexpired patent rights belonging to others. Likewise, a trademark search should be performed before adopting and using any brand name for the product (or business name). If you use the services of others for anything related to the development of your product (e.g. engineering, software programming, industrial design, artwork, etc. . . ) , there should be the necessary agreements in place to make sure that any intellectual property incorporated into the product is owned and controlled by you (or at the very least expressly licensed).
If others do own intellectual property rights that could apply to the product under development, this is not necessarily a barrier to entry, but may just be a hurdle. You may be able to purchase such intellectual property rights for yourself, or perhaps obtain a license. Of course this would be an added expense to development, but may be very worth it. Alternatively, if the owner isn’t willing or able to sell or license the rights to you on reasonable terms, then you may be able to design around the rights (e.g. modify your product design, or choose a different brand). If that isn’t practical there may also be legal grounds to challenge the validity of the intellectual property rights.
When dealing with intellectual property rights it is always recommended that you consult with a qualified registered U.S. patent attorney.
Some products may need to receive approval from a government regulatory agency before they can be legally made and sold. Examples of this in the United States would be FDA approval for certain medical devices, or FCC approval for telecommunication and electronic equipment. Obtaining the necessary regulatory approvals can be a time consuming and expensive task, and needs to be taken into account when planning product development. Assuming the product can satisfy the regulatory requirements, then it is a hurdle that can be overcome. However, if the product design cannot satisfy regulatory requirements then such requirements are barriers to the sale of the product.
In addition to any necessary government regulatory agency approval, there may also be a need to obtain a certification from a product safety organization such as Underwriter Laboratories (UL). Not every product needs such certification. However, many do, such as for example electrical products.
Underwriter Laboratories does not "approve" products for sale, but rather tests a product to see if it complies with particular product safety standards. To be UL certified a manufacturer must demonstrate compliance with the appropriate safety standard, and must also demonstrate that it has a program in place to ensure that each manufactured unit of the product will comply with the safety standard. Underwriter Laboratories may conduct inspections at a manufacturer’s locations to check compliance. If a product design is ever changed, a representative sample of the new design may be needed for retesting by Underwriter Laboratories before the changed product can be certified. If a product is tested and satisfies the pertinent standard then it will be allowed to bear the UL certification mark.
While the UL certification mark may not be required to legally sell your product, it may be necessary from a practical standpoint. In particular product distributors (including retail stores) may refuse to carry products that have not been UL certified, and UL certification may be a necessary condition to obtain insurance coverage. The need for, time, and expense of UL certification needs to be considered during the product development process. If a product is one that should be UL certified, then assuming the product can satisfy the pertinent saftey standard, then UL certification is a hurdle that can be overcome.
However, if the product design cannot satisfy the safety standard then the inability to get UL certification may be a barrier to the sale of the product.