Dippin’ Dots Spends Millions on Patent Invalidity
By Libby Jones, Staff Writer
During February of 2007, Dippin’ Dots, a company that sells flash frozen ice cream beads, encountered a case of patent invalidity.
The inventor of Dippin' Dots, Curt Jones, created the flavorful frozen ice cream when he was working as a microbiologist and simultaneously making homemade ice cream. When he realized he could combine his career with his hobby, he was able to develop the brand kids and adults have come to love buying at theme parks everywhere.
When he was testing the product, Jones sold the ice cream pellets to 800 customers to analyze their marketability. After adjusting his methods based on the feedback from his sales, he applied for a patent nearly two years later. The problem with this is that the method was adjusted to obvious standards. Zuber & Taillieu explain it well when they state, “a new product that is sold more than a year before a patent application is filed for that product is ineligible for patenting by virtue of its on-sale date and the fact that it has become known to the public”
Jones claimed these 800 sales were done for marketing research purposes, which is acceptable, but because the method was only slightly altered afterward, the jury sided with the defendant, one of Dippin’ Dot’s competitors.
Because the patent was proven to be invalid, Dippin’ Dots was stripped of their patent for the product and process of making the flash frozen ice cream.
Dippin’ Dots may have avoided – or been better equipped to deal with - this legal battle had they performed a professional patent validity search. A validity search can assess a patent’s strength and ability to withstand attack in litigation. Many patent holders can benefit from proactively performing a validity search on their patent, before the threat of patent litigation comes knocking on their doors. A validity search can be performed at any time during the life cycle of a patent.
Today, Dippin’ Dots is still in the appeals process in an effort to gain their patent back. They’ve spent about $10 million in legal fees already with the hopes to resolve this in favor of their company.
Although they remain the number one seller of flash frozen ice cream, Jones is constantly trying to develop new ideas with his brand. Currently, he’s thinking of creating “low-cal, low-fat Dippin' Dots that could be sold at schools,” "frappe dots" that, when mixed with milk, would mimic the taste of Frappuccinos, and “Fridgets,” which are Dippin' Dots clustered with candy or cookie pieces.”
November 15, 2010
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