In a post last week I pointed out several reasons why the Wilson driver design contest should fail; primarily because designers would have to be idiots to actually enter the contest. Unfortunately I suspect there will be plenty of entrants, probably leaning more toward those looking for 15-minutes of fame rather than passionate closet golf club designers with good ideas. Time will tell, and I will enjoy reviewing the show and the designs (most likely to point out likely IP problems).
One might ask, could Wilson have structured a contest that doesn’t totally rake the contestants over the coals? Good question, and the answer is absolutely. Here’s how… (keep in mind that this isn’t legal advice, merely common sense)
A big issue with the current structure is that it leads the average “non-fine-print-reading” Joe to believe that the winner is going to actually receive $500,000. Actually, it is highly unlikely that the winner is going to receive any more than $100, which is hardly fair since they will have sold all of the intellectual property associated with the winning design to Wilson for that $100. As you will recall from the prior post, four things must happen for the winner to actually receive $500,000, namely:
(a) you are specifically selected as the Grand Prize Winner of the Competition by the Producers during the Program(s),
(b) the Program(s) are subsequently produced and exhibited on the Golf Channel,
(c) Wilson elects to market a golf driver based on your Concept, and
(d) provided, that you are not in breach of this Agreement, then (i) your team shall be entitled to an amount of Five Hundred Thousand dollars ($500,000 USD) payable, if ever, upon such initial US network telecast of the Program(s)
Giving everyone the benefit of any doubt, let’s assume that (a), (b), and (d) actually occur. Then it comes down to whether “Wilson elects to market a driver based upon your Concept.”
How likely do think it is that Wilson will bring a product to market based upon the winning concept?
OK, for those of you not wearing rose colored glasses, the likelihood rests somewhere between slim and none, unless they are planning on having a whole team of patent attorneys involved in the show clearing design features and steering the design process away from landmines. Why? Most closet golf club designers only think about whether their designs are unique enough to enable them to protect the designs rather than thinking about how many of the thousands of golf club patents the design may infringe. While I may think adding the patent twist would be interesting, I suspect only about 100 other people would agree (although it could be produced in an interesting manner).
So, why not acknowledge this right from the start and decide whether the goal is:
(A) simply to come up with the coolest best performing design with (i) no intention of ever incorporating it in an actual product, and (ii) no concern for how many patents owned TaylorMade, Callaway, PING/Karsten, Titleist/Acushnet, etc. would be infringed by the design; OR
(B) much less simply, to come up with a new design or technology that can actually be incorporated into a Wilson product without immediately becoming the subject of a patent infringement lawsuit.
Realistically, viewers want to see a new “mother of all drivers,” not some very minor design improvement that may get you an additional yard, when hit perfectly.
What’s the solution?
Accept that goal (A) is the purpose of the show and award the winner $250,000 regardless, then an extra $250,000 if it makes it into an actual product. Yes, the naïve inventor will call me a pessimist, perhaps even a curmudgeon, but those in golf R&D with IP experience will likely side with me on the belief that as the contest currently stands the $500,000 is highly unlikely to be paid out.
Why? I would bet that the winning design of goal (A) would infringe at least one patent of every major club maker.
Does this matter? Not to Wilson under the structure of the current competition because the contestant indemnifies Wilson for all damages, liabilities, costs and expenses, including, but not limited to, reasonable outside attorney’s fees and costs. Guess how quickly patent litigators can burn through that winner’s purse!
This is why part of the solution will also require Wilson to man-up and not place all of the risk on the competitor, as it currently is. Wilson should eliminate the warranties and indemnification, and assume the responsibility of determining the level of risk associated with incorporating the winning design in a product, and bear this risk if they decide to introduce it. Will this ever happen? Of course not, it just makes too much sense and is way easier just to hose the contestant, who most likely has no understanding of the risk inherent in the current structure. Just be prepared to explain to your wife why you need to get a second mortgage on the house to pay lawyers to defend a large sporting goods company, all because you entered a stupid driver design contest!
I am just getting started, but that is as fired up as I care to get about this contest on a Friday evening, and I haven’t even mentioned the contestant’s $100 sale of all their intellectual property! Perhaps there will be a Part 2, although I would rather the contest be changed so that it is fair.
Would the head of R&D at any golf company enter this contest in the current form? Not a chance!
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