Build a better mousetrap, an the world will rip it off; sell it though direct response television, and make a pile of money off your invention.
     Or at least that’s the scenario being pitched by a Chester, NJ company called Precise Exercise Equipment Inc., which claims it was the originator of a product that has generated jaw-dropping $500 million in sales in the past year.  And it wants a big hunk of those profits back. 
     A lawsuit filed in the U.S. District Court in Los Angeles by Precise Exercise claims that everybody selling a certain type of abdominal exercise product through infomercials and retail outlets is violating its patent on the original device.  The suit names nearly 15 defendants, including Santa Monica infomercial giant Guthy-Renker and Philadelphia-based National Media Corp.
     Why does this suit matter?  Because it just may set a precedent  in the direct marketing business, which has grown from a $350 million industry in 1988 to a $1.15 billion powerhouse in 1995 – but still sexists in something of a legal and regulatory vacuum.
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Urbas:  ‘We consider these like the Hula Hoops of the ‘90s’
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     The products that sell on television infomercials are, by their very nature, faddish.  An estimated eight out of 10 infomercials actually lose money, costing more to produce and air than they generate in sales.  But that top 20 percent of hot products brings in more than enough to make up for the losers.
     And if there’s one product that’s likely to appeal to the people who spend their weekends cruising the cable TV wasteland, it’s something that promises to deliver firm, flat abs that can be cultivated while lying around watching television.  Enter the abdominal exercise device.
     According to Steve Dworman, the West L.A.-based publisher of Infomercial Marketing Report, abdominal exercisers have brought in $250 million in television-generated telephone orders and $270 million in sales at retail stores in the past year.  Except during prime time, a channel surfer can probably find an abdominal exerciser spot somewhere on the dial at any given day.
     “We consider these like the Hula Hoops of the ‘90’s,” said Eytan Urbas, a spokesman for Guthy-Renker, whose own entry in the market is a product called Perfect Abs.  “When something gets big on infomercals, it’s huge.
     The incredible popularity of these devices belies their simplicity – essentially, most of them simply make doing sit-ups more orthopedically correct, allowing the user to rock back and forth on metal bars with his or her head placed on padded support.
     But many of them are highly similar in design, which is why Precise Exercise thinks it has a case.
     According to Dworman, the principals of Precise Exercise first showed their invention at a trade show for sporting goods retailers called the Super Show two years ago.  They contracted with the infomercial producer Kent & Spiegel Direct Marketing, based in Culver City, to market the device while the patent on it was still pending, Dworman said.
     Last year, infomercial giant National Media began marketing a very similar product on television, and other companies soon followed.  Dworman says National Media’s Ab Roller Plus is probably one of the most successful products it has ever sold.
     “It’s a huge mess,” Dworman said.  “When somebody finds a product category that really works like this one, everybody jumps on the bandwagon and says, “We’ll make the money while we can and settle it late.”
     National Media has filed a motion for summary judgement, asking a federal judge to dismiss the case before trial for lack of evidence.  Not only did National Media come out with its own product before Precise Exercise’s patent was approved, the two products have substantial differences, National Media claims. Meanwhile Guthy-Renker has filed a cross-complaint against Precise Equipment and Kent & Spiegel, alleging anti-trust violations. Daniel Cislo, a partner at Santa Monica law firm, Cislo & Thomas who represents Guthy-Renker, said his client’s Perfect Abs product was specifically designed to avoid infringement of Precise Exercise’s patent.
     “What happens is, when you get such widespread dissemination of information, you get all these people coming out of the woodwork saying ‘I thought of that first,’” Cislo said.
     But attorney John Carson, a partner with downtown L.A. –based Robbins, Berliner & Carson who represents Precise Equipment, counters that any product sold after a patent is approved can be cited for infringing the patent, even if it was created before the approval.
     And if Precise Equipment’s patent did not apply to the devices being marketing by its competitors, the suit would have been dismissed long ago, he said.
     All of this legal bellyaching over abdominal exercisers could spell problems for the infomercial industry as a whole.  While direct response marketers have pretty much kept their disputes out of court before now, some see the Precise Exercise lawsuit as a sign of trouble ahead.
     Profit margins in the infomercial industry are getting tighter.  Dworman said, putting added pressure on marketers to find hot-selling products.  That is likely to mean more copying of popular items – and more lawsuits.
     “I really think this is going to be a landmark case in a lot of ways, and a lot of the future of this industry will depend on what happens,” said Dworman.