This week on Shark Tank highlighted a phone that wasn’t a phone and an overkill toolbox.  Both were touted to be covered by patents—at least until the presenters were grilled a bit.  Then it came out that only provisional applications had been filed.

So what are the Sharks’ positions on patents?  With Mark Cuban, that’s no secret.  He voices his opinion nearly every show.  And he hates patents, at least what he views as “stupid patents.”  This came out when Chris Sheldon and Van Gould presented their NoPhone, a fake phone that is supposed to help people lose their addictions for real phones. The theory is that if you have a fake phone that doesn’t work, you’ll lose your urge for a real phone. Instead of being distracted by your phone during dinner, you can feel the reassuring plastic in your hands.  They feel it is the pet rock for the new generation.  They put it this way, “It’s not just a piece of plastic—well it is a piece of plastic.”

When asked whether their NoPhone was protected by a patent, they said that they did.  But it was just a provisional patent, one they filed on themselves, they were quick to point out.

“A patent on a block of foam is stupid,” Cuban immediately spat out. “One thing that I hate more than being addicted to a phone is a dumb patent.”  That was enough for Cuban to bow out.

While I can understand why Cuban dislikes patents (his business is in software products where a lot of patents that should have never been issued worked their way through the patent office), his blanket stance on hating what he calls “stupid patents” is a little bit naïve.  One of my first clients came up with a product called the “wrist rest.” It was a block of foam that you put in front of your keyboard to prevent repetitive motion injuries.  The claims literally covered a block of foam.  Cuban would have thought this outrageous.  One of the largest office supply companies in the US didn’t think so.  They shelled out millions for the business, and now my client golfs and surfs every day.  My client was the first to recognize the problem and come up with a workable solution—so why shouldn’t he get the patent?

The other product claiming to be covered by a patent was the Coolbox, with a claim of being the world’s smartest toolbox.  The inventors are Chris Stoikos and Jason Neubauer who tout their toolbox has power, audio capacity, a built-in LED lamp and can charge your phone.

When Lori asked about a patent, they claimed they did—but again it turned out just to be a provisional patent, not the real thing.  Even worse, they admitted they were trying to claim all the features in combination.  Lori pointed out that somebody could easily get around this patent, even if it were ever granted. “What if it doesn’t have a magnetic top, or speakers?” she asked.

Another Shark asked whether Black and Decker could easily copy them.

Of course the answer is yes, they could—unless they figured out a way to claim the minimum amount of features

That didn’t seem to bother the Coolbox inventors.  They said they would keep innovating and didn’t need a patent.  Always a good strategy if you can’t get a patent.  Even so, I wouldn’t give up on their patent.  They may be able to cover some of the features that the Chinese always want to copy

I think their biggest issue is going to be their trademark.  When I ran a Google search, there were all kinds of Coolbox products out there.  I wonder if these folks ever did a trademark clearance search?  I wouldn’t be surprised if they end up changing their name.  This is a common problem with small inventors.  They try to get to market as soon as possible without doing the legal groundwork.  Whether patents or trademarks, it is prudent to see if someone else has staked a claim.

Unless your product is the NoPhone.  Then I guess it really doesn’t matter.