Saturday, July 07, 2007

More on Jonathan Cheng, BraBaby, and BraBall

A lot of Jonathan Cheng's Wall Street Journal article Small Firm Takes On
Chinese Pirates
didn't make sense and IPBiz has spent some time unpacking it.

Manifestly, Cheng was trying to make the point that manufacturers in the third world, including China, were pirating the BraBaby idea of Laura Engel. For example, there was the line: What he [Mr. Engel] is really up to on that computer, four hours a day, is tracking Chinese companies selling knockoffs of BraBaby online at cut-rate prices.

Cheng employs patent language: The uphill battle has even strained Mr. Engel's relationship with his wife, who invented BraBaby two years ago and as vice president manages its marketing. (...) In the tangled world of intellectual-property claims, Mr. Engel himself isn't immune to challenges. An Austin, Texas, company called BraBall holds an earlier U.S. patent on a product similar to the BraBaby, though BraBall part-owner Jack Lander, a past president of the United Inventors Association, says there are no immediate plans to challenge Mr. Engel's product in court.

The role of Lander in BraBell shows that this story has an entirely different dimension from that depicted by Cheng.

The following is from text by Kimberly Garza in the Daily Texan:

After obtaining a patent on her product and a trademark on the name "BraBall," Phan said she felt lost and confused about where to go next.


Sarao, along with her sister Barbara Pitts, founded, a Web site devoted to helping first-time inventors with the process of going from idea to patenting, marketing and licensing. Phan heard of Pitts and Sarao when she bought the magazine Inventor's Digest on the suggestion of daytime TV host Sally Jesse Raphael. Phan contacted the sisters when she was desperate and had no clue what to do. They referred her to engineer and mentor Jack Lander.

In an e-mail interview, Lander said he became what he calls an "inventor-mentor" after he began teaching night courses in patent writing and the invention process. After creating the first prototypes for Phan, Lander said he liked the BraBall idea so much he became Phan's partner in Phantastic Innovations.

The interesting part of Garza'a article, as to BraBaby, is the following:

Phan admitted she had difficulty with mastering the invention process, mostly due to the fact that she didn't market the BraBall sooner. Marketing, according to experts, is the most important part of the invention process because of the risk of copycat products. Phan found this out the hard way - she was imitated by another brand, Angel Sales Inc., and their product BraBaby, trademarked in 2005. Because she failed to market her product sooner, the BraBaby has already locked her out of catalogues, an important method of advertising.

So, although Cheng focussed on "pirating by the Chinese of BraBaby," Phan might say her BarBall was pirated by BarBaby. The Garza article indicates BraBaby was TRADEMARKED (not patented) in 2005.

Garza gets into the difficulty with enforcing patents, something that all the patent reform folks might contemplate:

Butler said patents are a good way to protect a design from knock-offs, but marketing is the most important.

"If you've got a patent - in theory, of course - you can sue. But it isn't about inventing it yourself," Butler said. "What you've got to be able to do is to commercialize it yourself."

Alan Blake, a UT alumnus and businessman, said Phan's struggle with patenting and knock-offs is typical.

"[Patenting] is extraordinarily complicated," he said. "Success requires a tremendous amount of persistence."

IPBiz suspects that BarBaby's complaints about the Chinese piracy pertain more to trademark issues with the NAME "BarBaby" than with the underlying product or invention thereof. Trademarking the name "BarBaby" is a different exercise than inventing the article of manufacture termed BarBaby or BarBall.

Cheng really missed the boat on this story. Coming up with a name to identify a product is a different matter from inventing the product in the first place.

See the earlier IPBiz post, The piracy of BraBaby; Wall Street Journal missing facts?

[In passing, IPBiz did locate US 6,742,683 to Phan; Kieu Thi-Bich which does cite two issued patents to DesForges. The first claim of the '683 patent recites:

A device for washing, drying, and storing brassiere, comprising: a. a body having a sufficient size to accommodate a brassiere-like object having a cup or inner side and an outer side, b. said body biaxially hinged to the shell connecting hinge round shape with a plurality of holes, c. said body comprising an outer shell in two parts hingedly connected and a hollow interior, d. an inner form having i. a hollow interior; ii. a plurality of holes, and iii. a curved contour similar to that of said brassiere-like object's breast side, e. said inner form being positioned within said hollow interior of said outer shell. ]


Toan Ho made a useful comment to the earlier IPBiz post on BraBaby, pointing out the presence of DESIGN patents, as distinct from UTILITY patents. The one design patent identified is indeed to Angel Sales, Inc.; HOWEVER, the inventor for the identified design patent (D524500) is listed as Victor Wai, NOT Laura Engel. One notes that the USPTO lists Victor Wai's residence as Kowloon, HK.

Without going into great detail on DESIGN patents, a DESIGN patent, as implied by the name, covers a specific design, as is separately illustrated in the claiming structure of D'500 ("The ornamental design for a garment cage assembly, as shown and described.") As Ho pointed out, the patent may be viewed on Google/patents. Ho also correctly points out that D'500 cites to Phan's utility patent, US 6742683, so that there is little doubt as to "who was first."

In the Wall Street Journal article asserting piracy by Asians, it is somewhat ironic to note that two of the key inventors in the saga are named Phan and Wai. Reading the WSJ article, one might have thought the inventors were Lander and Engel.

For those interested:

Jonathan Cheng is at


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