30 Years Ago - Coca-Cola's New Coke "Fail"

Yesterday marked the 30th anniversary of Coca-Cola's public admission that "New" Coke was a commercial failure.  As the linked article reminds, in April 1985, Coca-Cola, Inc. announced that it would abandon the original Coca-Cola formula and switch to a "new" formula that resulted in a slightly sweeter taste similar to Pepsi.  Yet, a mere 79 days after its launch, Coca-Cola announced on July 11, 1985 that it would resurrect the original formula in the re-branded "Coca-Cola Classic" (or "Coke Classic") while maintaining the "New" Coke product as well. Whether this was a massive failure in understanding one's product and it's market, or a cleverly designed scheme to shelve the original formula for a short-time to drive up publicity and demand for that product, the return of the original formula ("Classic") to shelves resulted in improved sales and better competitive footing with Pepsi (which would later endure a similar "misstep" with Crystal Pepsi in 1992 - coincidentally, also set for a revival soon).

While the public tends to have a basic understanding of trade secret protection, many know that the original Coca-Cola formula is perhaps the most famous trade secret in business history.  It is one of the great examples of the value of a trade secret.  It also represents the leading alternative to the patent process.

With any new/improved technology, process, or technique, the innovator(s) is faced with the dilemma of whether to patent the improvement or protect the innovation by trade secret.  While there are instances where both forms of protection may be utilized to protect different aspects of the overall improvement, each separate aspect of the new/improved innovation must be held in secrecy (trade secret) or disclosed (patent).  The two (different) forms of protection compel the different approaches, since these forms of protection are the opposite sides of the same innovation coin, in several legal and practical ways.

Trade secret laws are based in common law, and have since been codified at the state level and/or through interstate compacts (e.g., UTSA, the  Uniform Trade Secret Act).  Despite adoption in all states and in uniform acts, most versions are virtually identical in form.  Something of value must be held in secrecy and protected using reasonable means to guard against public accessibility.

Notably, one does not "apply" for a trade secret or await "approval" from a governmental agency.  Thus, there is no governmental cost to obtaining a trade secret; the only costs are business and legal.  One simply holds the technology, process, technique, information, or data in secret (well, more simply stated than simply accomplished).  If the tech/info is pilfered by another, then "misappropriation" of a trade secret has occurred and is actionable.  And unlike patent law, trade secret law has both a civil penalty and a criminal penalty aspect (exemplified by the unlikely team of Coca-Cola and Pepsico assisting the FBI in prosecuting three individuals for the theft and attempted sale of Coca-Cola info to Pepsico).

Conversely, patent laws are based in the U.S. Constitution (as are copyright laws).  To obtain a patent, one must file an application with the U.S. Patent and Trademark Office (USPTO or PTO).  The application must include at least one written claim defining the scope (the metes and bounds like the written description of a property deed), as well as an inventor's declaration, and the appropriate filing fees.

The application will often endure a 2-4 year road through examination, hopefully with issuance of at least one claim and a patent resulting thereafter.  In exchange for the limited monopoly of the granted patent, measured as a 20-year term from the filing date, the inventor/applicant must disclose all information necessary to practice the invention.

Thus, the flip-sides of the coin:  secrecy and potential protection into perpetuity (trade secret), or public disclosure and limited monopoly (patent).  Sometimes the dilemma is easy to resolve; other times, it is the decision that determines the livelihood of the business going forward.  If you have such a dilemma, do not hesitate to contact York Law LLC to determine which path is the best for your business.

A Long and Winding Road (Gibson's Self-Tuning Guitar)

Begging the pardon of The Beatles and their single-swan-song, the last studio single released in the United States (peaking at #1), "The Long and Winding Road", but it was a very suitable description of Gibson Guitar's latest technology, the self-tuning guitar having a cpu that communicates with robot-tuners that properly and mechanically tunes each guitar string.  Gibson (and inventor Chris Adams) admits that the conception, development, implementation, and "fine tuning" of this technology has been a long time (over 10 years) in the making.  The combination of the cpu and robot-tuners wind the stem of the tuning pegs to add or remove tension on the string necessary to meet the tuner's pitch. Although this is not the first attempt at auto-mechanical tuning of a stringed instrument (e.g., U.S. Pat. No. 6,437,226 by Viking Technologies), Adams was successful in gaining patentable subject matter via the claims of U.S. Pat. No. 7,786,373.  As part of the long and winding process, Adams first filed an application in the European Patent office in May 2004, followed by a PCT (Patent Cooperation Treaty -- aka "International" application) in Jan. 2005, and followed by national phase entries in 2008, and followed by US issuance in Aug. 2010.  However, the patent owners allowed this patent to lapse (by failing to make the maintenance fee payment, presumptively to focus resources on other related inventions).

That focus has led to at least one other U.S. patent for Adams, including U.S. Patent No. 8,772,615 for the fine-tuning drive mechanism operating the tuning peg (to add/remove tension). Beyond the critics that question the reliability of the tuning (or more precisely, remaining in-tune), the device does not appear to be universal (at least beyond the Gibson models).

Unlike Gibson, which predominantly offers fixed tailpiece bridges and no locking nut at the headstock, most other guitar manufacturers have floating tremelo systems (e.g., Floyd Rose; Kahler; Steinberger) that must have a locking-nut at the headstock position to help maintain the string tunings.  In the locking-nut systems, a robot-tuner would (seemingly) be ineffectual as the locking-nut system maintains tension on the string (capable of withstanding dives and rises), and the robot-tuner would be unable to overcome the locked tension.

On the other hand, the Gibson robot-tuning system could still be installed and used on a locking-nut/tremelo system, but it would add the steps of requiring the person tuning the guitar to loosen the locking-nuts, allow the robot-tuner to place each string into proper tune, and then tighten the locking-nuts and fine-tune the strings based on the auto-tuner provided or by the ear of the human-tuner.

Whether this technology gains traction in usage by Gibson buyers (who will have no choice but to purchase the tech include in any new Gibson guitars) remains to be seen.  Musicians are hesitant to change anything that is not broken (or at least perceived that way).  Yet the convenience of a robot-tuning system is probably something that cannot be appreciated until it is used (and then not available).

If you have new or unique tech to add to an instrument, or have a new design for an instrument, please consider the intellectual property services of York Law LLC.  One never knows what new developments will strike the fancy of the instrument-playing public.