With her creative concept underway, Angie needed to protect her ideas and future product. She realized that she would have to file for a U.S. and foreign (PCT) patent. She knew the efforts required since she helped her previous employer with patents for his inventions. Angie started her search through the website of the U.S. Patent and Trademark Office where there are databases of existing patents. She soon realized that this was a tedious task, especially since many images functioned improperly and took long to download. To facilitate her search, Angie purchased a program called Patent Hunter. This program, which costs approximately $90, allows an individual to search U.S. and foreign patents with the use of keywords, patent numbers, and patent authors. The search will reveal a list of patent titles, which an individual can quickly and easily download in a PDF document for review. Angie says that this program is “worth every penny.”

After significant research, Angie determined that her patent was not within these documents. Because lip gloss is an established product and the retractable device concept already exists, Angie knew she had to file a utility patent, which is issued to the function of an invention (not its unique design). Although both parts of Angie’s design exist separately, they do not exist together on the same product. She contacted her lawyers and filed a basic form explaining her patent. Her filing included a simple drawing. Her lawyers created the patent and it was filed (See Exhibit H - YOYO Patent). Although Angie received her filing receipt in short order, the process was far from over. She still needed to file a PCT (Patent Cooperation Treaty) patent and receive approval.

The PCT does not provide an international patent. Rather, the purpose of the Patent Cooperation Treaty, she learned, is to “[simplify] the process of filing patent applications, [delay] the expenses associated with applying for patent protection in foreign countries, and [allow] the inventor more time to assess the commercial viability of his/her invention.” Angie describes it as “a patent that provides a worldwide blanket.” “Under the PCT, an inventor can file a single international patent application in one language with one patent office in order to simultaneously seek protection for an invention in the PCT member countries.” The initial PCT and U.S. patent costs were approximately $10,000.

Even though her patents have been filed, the USPTO still needs to approve them. This process can be lengthy and requires good communication. When a patent is filed initially, lawyers include as many claims as possible and broadly define terms. Angie’s initial claims did not explicitly state that the retractable device was directly attached to the applicator system. The patent examiner requested that she define her claims explicitly and describe that the applicator was, in fact, attached to the device. Angie, initially, left this claim broad to allow it to apply to alternate designs; perhaps the lip gloss could rest in a case and the case could be attached to the reel. Through the patent examination process, some or all of the claims are eliminated. This becomes somewhat of a negotiation process. Angie became dissatisfied with her initial legal representation because she felt they were not communicating adequately with her. As a result, she hired new representation. To highlight the value of networking to an entrepreneur, Angie’s new lawyer is her mother’s doctor’s brother. Angie feels her new lawyer communicates well. They have gone back-and-forth with the examiner concerning a set of exceptions, and discussions are now in their final stages. Both Angie’s lawyer and patent examiner have agreed to the amendments made. In addition to her PCT and U.S. patent, Angie has also trademarked the YOYO name within the cosmetic industry, trademarked her logo, and trademarked and copyrighted all her characters.

The USPTO is not the only governmental agency with whom Angie needed to interface; she also needed to work with the Federal Drug Administration (FDA) regarding her lip gloss formula. The FDA regulates cosmetics through the Federal Food, Drug, and Cosmetic Act (FDC Act) and the Federal Fair Packaging and Labeling Act (FPLA), which were created to protect the public from health dangers and misleading practices. Because of the FDA’s objectives to protect and inform the public, it created meticulous labeling requirements. While the FDA does not approve lip gloss and its packaging prior to its market release (with the exception of color additives), it does pursue violators. It is up to each individual releasing a product to make sure he/she is within FDA guidelines. This can be a cumbersome task.

Angie soon became aware that the assistance provided by the FDA was minimal. She had to contact the FDA office numerous times and describes the experience as “challenging, yet very educational – kind of a test of one’s perseverance.” As a result of the strict guidelines set forth by the FDA and limited assistance provided by their office, Angie enlisted the help of an independent agency called the Cosmetic, Toiletry and Fragrance Association (CTFA), which was created with the support of the FDA and the Consumer Federation of America (CFA). This organization publishes a book titled The International Cosmetic Ingredient Dictionary and Handbook, which provides a list of proper ingredient terminology needed for labeling purposes, and the CTFA Labeling Manual, which explains FDA labeling requirements in an orderly and complete manner. Angie purchased both of these references. Due to the FDA guidelines and Angie’s desire to bring a quality product to market, she hired a U.S. chemist to develop the YOYO Lip Gloss formula.

After all this effort and expense, Angie still wonders whether the patent, trademarks, and copyrights will be enough to protect her ideas and product? Will the larger companies in the industry be able to circumvent these protections and produce a similar product? This remains a major concern as the venture moves forward.