185 6 Warranties, Patents, and Ethical Considerations 6.1 Warranties and Guaranties When a mold maker builds a mold, it is expected to perform as quoted and to last without breakdowns for a long time. It is also expected to make the product to specifications and dimensionally correct, and at a productivity that has been estimated to the best knowledge of the designer and mold maker. 6.1.1 Guaranteed Quality Normally, a mold maker will guarantee the quality of the mold for six months or for one year, covering materials and labor. In fact, if problems did not arise within the first few weeks or months (or the first few thousand molding cycles) after start of operation, a properly designed and built mold, well maintained, will virtually last forever, except for unavoidable wear on tapers, gates, etc., or when abusing the mold, e.g., by improper setup, or physical damage due to negligence. Occasionally, the mold maker may be asked to guarantee shrinkage, cycle time, or delivery time. 6.1.2 Guaranteed Shrinkage Experienced designers or mold makers can usually foresee the shrinkage, especially if they are familiar with the product. Shrinkage affects not only the dimensions of a product but sometimes also its shape by distorting the product. This can be difficult to foresee, in particular with non-symmetrical and odd-shaped products. In many cases, this requires experimentation before finalizing the mold or testing after some or the entire mold is finished. It could require experimenting with cycle times, even changing some steel dimensions, or the cooling provisions in all or in certain areas of the mold. Often, the molder will provide steel sizes to the mold maker, eliminating the need and cost to guarantee the plastic sizes. There are also usually only one or a few dimensions that are critical and these should be the only ones guaranteed. The possibility of the need to experiment to arrive at proper sizes should be foreseen by the estimator and should be included in the mold price by selecting a higher risk factor. As an alternative, such testing and necessary rework could also be quoted separately as addition to the mold price, e.g., by quoting labor and materials required to achieve the desired result. 1281han06.pmd 28.11.2005, 11:08185 186 6 Warranties, Patents, and Ethical Considerations 6.1.3 Guaranteed Cycle Time An experienced molder, designer, or mold maker will have a good idea what cycle time to expect. A mold quote can include the estimated, approximate cycle times, e.g., “estimated 10–12 s cycle” (or “estimated 5–6 shots per minute”), together with the specified physical characteristics of the mold. Some customers (not necessarily molders) want to have the cycle time guaranteed. It is quite risky for the mold makers to accept such a demand. The estimated times are always given to the best of their knowledge and experience and the mold makers will do their best to achieve the quoted cycle time. If the customer insists on a written guarantee for a certain cycle time, an experienced mold maker may consider accepting it, provided that there will also be a guaranteed premium if the cycle time is better than promised. Such an arrangement could be, for example, that the customer will get a percentage of the mold price reduced for each second or fraction of a second that the cycle is longer, and will pay a premium of the same amount for every second or fraction of a second the cycle is shorter than the guaranteed cycle, up to a certain limit. There is always the problem that, in some cases, higher speed may affect the quality of the product. This must be recognized before and discussed with the molder, before agreeing to any, especially shrinkage, warranty. 6.1.4 Guaranteed Delivery Here too, it is a question of the mold maker’s experience with the mold and their understanding and control of the mold shop load. If the customer wants to have the mold within a certain, reasonably short period and wants to negotiate penalties if the mold is not ready as promised, this could be accepted provided that the customer is also willing to pay a premium equal to the penalty if the mold is ready before the promised delivery date. I have seen both guaranteed cycle times and guaranteed deliveries and most often the jobs were concluded to the mold maker’s benefit. Note that the customers were never unhappy to pay the premium, because they too gained by being in production sooner and/or gaining higher productivity. 6.2 Patents and Ethical Considerations While patents and ethics may not directly or immediately affect the cost of a mold, everyone in this chain should be aware of the risks and problems of ignoring potential patents or unethical behavior. The following highlights some of the basics that anybody considering a new product and/or a new mold design should be aware of. All guarantees must be agreed to in writing, before the project starts 1281han06.pmd 28.11.2005, 11:08186 187 6.2 Patents and Ethical Considerations 6.2.1 Patents Patents are issued by the patent office. They describe in detail the patented features (“improvements”) of parts of or of whole products, or machines (“apparatus”), or of methods of manufacturing. The features to be patented must satisfy all three of the following. They must be  “novel”, i.e., new and “surprising” to anyone familiar with the subject,  “useful”, i.e., explain at least one useful purpose, and  “feasible”, i.e., the patent application must show at least one possible way of how the improvements can be achieved and how they function. “Claims” define precisely, which features are claimed to be patented. A claim can cover a portion or a whole machine, a product or part of a product, or a method, but most often it covers just an “improvement” of a certain (often very small) area or feature of a product, machine, or process. An issued patent does not protect the inventors, but gives them the right to legally attack anybody who is “infringing”, i.e., “making”, “selling”, or “using” anything covered by the claims. A patent is valid (effective) only in the country where the patent was issued and only for a limited time, usually 17 years from the day of issue. A patent, issued in the USA, does not give the right to attack someone in other countries from making, selling, or using it, but it gives the right to attack anyone who wants to use or sell this infringing product in the USA. An issued patent is an asset, and can be sold or licensed. In assessing the value of a company, banks and investors look favorably at a company who owns patents. “Design patents” cover certain special shapes and patterns of (usually) consumer items. Design patents are much easier to obtain, however, their value is often questionable. “Prior art”. When applying for a patent, the inventors must solemnly declare that, to their best knowledge, they are not aware of anyone who has ever used or published the claimed feature or design anywhere else in the world; they must also indicate all the fields where the “invention” applies. The patent office will then do a perfunctory search of similar features in existing patents, not necessarily only in the indicated fields, and if none are found, can issue a patent. This process from application to issuance can take one or more years and is quite expensive, especially because a patent attorney should handle it to comply with the proper format and wording of the application. There are no patent rights while the application is being considered, but there are some advantages for the inventor between the date of application and the date of issue of the patent. Prior art is the weak spot of most patents. If it can be proven that the “claimed” features have been used anywhere in the world, whether patented or not, “A patent is a Sword, not a Shield” 1281han06.pmd 28.11.2005, 11:08187 188 6 Warranties, Patents, and Ethical Considerations prior to the date of the application, even an issued patent can be declared invalid. A worldwide search can be very expensive. It covers only issued patents in some countries, some trade magazines, articles or books, but not all magazines nor all published catalogues, or designs or practices which are or were in public use. For most patents that have been declared invalid it was discovered after issue that the claims were not “novel”. If an inventor decides not to apply for a patent, he or she can select to publish the product in which the invention is clearly used, e.g., in a sales catalogue, advertisements, or trade magazine. While thereby forgoing any right for a patent, it also prevents anyone else to get a patent after the date of publishing. It is often a question of simple economics to decide whether it is worthwhile to apply for a patent. A patent is only of value to the owner as long as anyone infringing it is found out by the owner of the patent, first warned to “cease and desist” and eventually, if needed, prosecuted. These legal proceedings are very expensive and can draw out over years. It is often better and much cheaper to settle such disputes amicably. Also, if the owner of a patent does not use a patent within a stipulated time after issue (typically 5 years), or does not prosecute a known “infringer”, the patent can become invalid. If a product is wholly or partly covered by one or more patents, the relevant patent number(s) must be disclosed, either on the product itself by engraving, printing, or on an attached nameplate. If the product is too small, or if, for other reasons, it is impractical to show the number(s) on the product itself, they can be shown on the packaging for the product. The frequently found words such as “patent protected”, “patent issued”, “patent pending”, or any abbreviation thereof have no value. The country granting the patent should also be shown, e.g., “US pat. #9,876,543”. The patent numbers put the buyer or user of the product on notice that there are patented features to consider which may be used to prevent any copier from proceeding. But on the other hand it also opens the door to an attack by a copier to declare the patent(s) invalid because of possible prior art that has not been found during the original patent application. How Do Patents Affect the Decision Maker and the Mold Maker? Both parties should be aware that any patents they do not own or are licensed to use could be used to prosecute either the customer, the molder, the mold maker, or even the end user of the product, or any or all of them. Anyone making, selling, or using a product (and that includes the mold) that is covered by a patent is subject to prosecution by the rightful owner of the patent. Anyone who wants to have a mold built for any product must be asked to assure the molder and the mold maker in writing that, to their knowledge, there is no valid patent covering all or some of the features of the product for which a mold needs to be built and also agree (in writing) that they will The most frequent reason for declaring a patent invalid is that “prior art” has been unearthed 1281han06.pmd 28.11.2005, 11:08188 189 assume full responsibility to keep the other involved parties harmless in the event of prosecution because of patent infringement (“hold-harmless agreement”). A similar agreement may be necessary between the mold maker and the molder that the mold does not contain any patented features which could be attacked by an owner of a valid patent. This could happen to the molder or even the end user after the product is sold to the public. Typically, this applies when copying patented mold features, such as hot runner hardware, ejection and handling methods, and others. When finalizing a purchasing contract for a new mold or molding system, it is good practice to discuss the ownership of any patentable features that may be the result of designing the molds or ancillary equipment by the mold designer or the mold maker. There could be an agreement that any issuing patent(s) will be owned by the purchaser (customer) of the mold, who will also assume the costs of obtaining the patent, but naming the actual designer or designers as inventors, and maybe including the names of the product designers of the customer. It could also stipulate that the mold maker will have the right to use such patentable features in other molds, but not in molds that would compete with the patent owner. 6.2.2 Ethical Considerations Not all copying problems apply to patented features only. For example, let’s assume a new, but not patented, plastic product is launched by an entre- preneur and turns out to be a great success. The mold maker, who built the original mold, will probably be asked to work on additional, better molds with more output, to cover the expected increased demand. At this moment, some other entrepreneur may see an opportunity to make and sell the same or a very similar product and approach the same mold maker to build a similar mold for this competing entrepreneur. Often, such “copiers” don’t even bother with a product drawing but just bring a sample of the original product, from which the mold maker should build a mold. In this case, the problem could be solved simply by the mold maker, by flatly refusing to get involved. It would be neither ethical, nor fair to their existing customer to help a competitor. Another frequent scenario is a prospective customer, or a molder, presenting the mold maker with a sample of a product made by someone else and the mold maker was not originally involved with it. In such cases, it is better to ask the customers to come back for quotations when they have their own completely detailed, toleranced, and dimensioned drawing ready, complete with assurances as indicated above regarding patent infringement. Under those conditions a job can be accepted. 6.2 Patents and Ethical Considerations 1281han06.pmd 28.11.2005, 11:08189 . 185 6 Warranties, Patents, and Ethical Considerations 6.1 Warranties and Guaranties When a mold maker builds a mold, it is expected to perform as quoted and to. by quoting labor and materials required to achieve the desired result. 1281han06.pmd 28.11.2005, 11:08185 186 6 Warranties, Patents, and Ethical Considerations 6.1.3