If you’re a parent, diapers are the only thing that stands between your baby’s bowel movements and, well, everything you own. You’ll probably spend at least a thousands dollars on them, per kid.
All around the world, that’s about $40 billionspent each year. And diaper companies know this. The makers of Huggies and Pampers, the two biggest brands, want those dollars — they don’t want to have to compete with each other to get them. Which is why, in the 1980s and 90s, they tried to litigate each other out of existence in a patent battle known as the diaper wars.
“It’s a 150-year-old term to refer to these things as wars,” says Adam Mossoff, a professor and patent historian at George Mason University School of Law. He says today, we talk a lot about the “smartphone wars” between Apple and Android. But that’s just the latest.
“In fact,” he says, “there was a patent war over the telephone, over electrical distribution systems, over radio, over airplanes, over television, over the laser.” And, he says, the diaper wars.
Even products we take for granted involve massive technological innovation that companies are willing to spend millions to defend. To do it, they use a legal framework that’s barely changed for centuries: patent laws.
The first disposable diaper
Back in the 1960s, Procter & Gamble, the maker of Pampers, pretty much ownedthe disposable diaper market.
I watched about a dozen black and white Pampers ads from this era. In ad after ad, one mom would smugly say to here her so-not-hip friend, “Oh you still use diapers? I don’t use diapers, I use Pampers.” As if “diapers” automatically meant this lousy cloth thing and Pampers were synonymous with the disposable version. And for a few decades, it was true: if you were a North American parent burnt out on washing poo-covered pieces of cloth, you probably went out and bought Pampers.
Until Huggies came along.
“My recollection is in the early 80s Kimberly-Clark came on the scenes in a fairly big way with the Huggies product,” says patent attorney John Sweeney, who represented Procter & Gamble in the diaper wars.
“And Huggies was a sort of the number two firm but gaining market share on Procter & Gamble,” says patent attorney Bill Baumgartner, one of Kimberly-Clark’s lawyers.
Perhaps Procter & Gamble could have tried to just out-advertise Kimberly-Clark. But the company claimed that Kimberly-Clark was using Pampers technology to steal Pampers customers. And Procter & Gamble had patents on that technology.
So, Procter & Gamble took Kimberly-Clark to court for patent infringement — one diaper patent at a time. And Kimberly-Clark responded in pretty much the same way.Each company was trying to “get their piece of the pie in the disposable diaper market,” says David Aylen, another prior counsel for Kimberly-Clark in the diaper wars.
Every single diaper patent was fair game litigation. Up first, in 1985, were elastic waistbands. Procter & Gamble claimed they’d invented them first. The case went before a jury.
“I counted about five lawyers on each side who were managing this case,” says Aylen. “And they were all males, all men on each side, with a male judge talking to the jury. And all male witnesses. And what they were talking about is how diapers work. It was pretty amusing situation.
But not a trivial one. Kimberly-Clark was afraid their Huggies diapers would go the way of the Kodak instant camera. There’s a reason we call instant cameras “Polaroids:” Kodak, the number two brand in the instant camera market, didn’t make it. They lost to Polaroid in a patent infringement case.
If Procter & Gamble won the diaper wars, they’d go back to being the only big dog in the fight — “Pampers” would mean “disposable diaper” forever.
“Well we were staying at the same hotel and the Proctor & Gamble lawyers went out to dinner in a limousine every night,” recalls Kimberly-Clark lawyer Bill Baumgartner. “We usually had takeout food in our office.”
But they got the last laugh. The jury ruled that Procter & Gamble did not in fact have sole rights to an elastic waistband patent.
“After the jury verdict we rode to the airport in their limousine,” laughs Baumgartner.
But Procter & Gamble just came back with another patent infringement case.
“This was their business strategy,” says Baumgartner, “to use patent litigation to try to drive Kimberly-Clark out of the business. And so they failed the first time and they were going to try again.”
And the war went on from there.
How we got here
The first patent law we know of was in 15th century Venice. Before patents, inventors had to be stealthy, otherwise people could just steal their ideas and make money off them. Patents helped protect their inventions and share them publicly without fear of getting scooped.
But the role of patents changed in the 1850s, thanks to the sewing machine wars.
Isaac Singer was selling the first really practical commercial sewing machine, a total hit. And he had come up with a few key features. But a good part of his sewing machine’s design piggy-backed off of other people’s inventions.
“Things like having a sewing machine on a horizontal table as opposed to placing it vertically,” explains patent historian Adam Mossoff. Things that we look at today and say, ‘Oh well of course.’”
Other sewing machine makers went after Singer with patent infringement suits. No one was saying they owned all the rights to sewing machine technology – they were just attacking Singer, and later each other, one patent at a time.
This opened the door for the use of patents as tools of competition. Now in many instances, when all else fails, companies cry patent infringement to try to stay at the top of a market.
The end of the wars
By 1990, five years into the war, a new trial was underway. A court document reads, “The problem of BM leakage had increased in importance because doctors were placing a new emphasis on breastfeeding, and breast fed babies apparently tend to have explosive runny BM’s.”
This particular trial concerned protection against these explosive, runny BM’s. Both companies were putting in a new kind of diaper crotch barrier. Kimberly-Clark argued they’d patented the special diaper crotch first.
“So we had our expert perform what is called an incline plane test,” recalls Procter & Gamble counsel John Sweeney, “where the fabric would be put on what’s called a incline plane, at I think about 30 or 45 degrees, and then we would allow synthetic urine to hit the material and see if it penetrated the fabric or whether it all rolled off.”
This was a urine demonstration. For a court.
“Well they wouldn’t use those words they’d try to use more, um, metaphorical terms,” says Kimberly-Clark lawyer David Aylen. “They would say things like ‘insulting the diaper.’”
And the cases went on from there. For every case tried in the US there was also Canadian trial, sometimes also a Mexican trial. Dozens more lawyers talking euphemistically about urine.
The diaper wars finally came to an end in 1992. The companies settled an anti-trust case out of court. In the meantime, though, off-brands had sprung up, using the leading brands’ technology. So when Kimberly-Clark and Procter & Gamble stopped fighting each other, they got to work litigating the other guys out of business. The top generic brand went into bankruptcy six years later.
Today, Kimberly-Clark and Procter & Gamble today are still at the top of the disposable diaper market. Was it worth it? Adam Mossoff, the patent historian, says ultimately it was the consumers that won the diaper wars. And that’s typical.
But to enjoy those benefits, we consumers foot the bill for sometimes decades of litigation. And Mossoff says that’s just part of the cost of innovation. Ultimately, we are the ones getting the better sewing machine, the better smartphone, the better diaper.
“We end up actually paying less for the products and services that come from the new technology,” he says. “Lawyers are part of this process throughout everything. In fact it’s somewhat of an unfortunate assumption that people think of lawyers or other types of costs of getting something as um completely unnecessary.”
For many of us, the fact that our consumer money goes towards a company’s research and development feels agreeable enough. But the idea of the price we’re paying for a product also contributing to the company’s legal fees feels less savory.
“They’re very much intertwined with each other,” Mossoff says in response. “A company is not going to spend billions of dollars in research and development if they don’t have also the ability to say to other companies in the marketplace or other individuals, you have to pay me to use my property.”
So is it really over? Could we get Diaper Wars 2.0?
“I think it’s possible,” says Procter & Gamble attorney John Sweeney. In fact, he might even have a case.
“From the lawyer’s perspective, we’re hoping it turns into a very intense five-year war or something,” he grins. “But I don’t know if the companies really want to do that.”
Editor: Casey Miner
Producer: Zach Hirsch