Can my idea be protected ?

[eladlavi]

What is the name of your state (only U.S. law)? Texas

I want to know if I can protect my idea for a product, I’m not sure that it is unique enough but since I don’t want to describe my idea, I will give similar examples. My product exists in the market but I’m adding a unique element to it, this element also exist in the market but the combination between the product and the element doesn’t exist like that in the market and not in the USPTO patent database when I tried to find it. Examples: when the first company started to sell Milk with Vitamin D addition they created a combination between two existing products, can their competitors start marketing the same combination right after the product was launched to the market? Another example, when they first started to sell the cell phone combined with an mp3 player, they combined to existing products. I hope the common thing in my examples is clear enough, if not I will give more examples.
My question is: Can I be protected so my new product will not sell by others for couple of years? Is it considered a patent or a trademark?
Ohh another good example is the speaking doll; they added a special element to a doll so kids will like it much more.

Thank you.

 

[divgradcurl]

There isn't any way to answer your question without looking at all od the actual facts of your situation. In a general sense, combinations of known products can, in principle, be patented, so long as they are useful, novel, and non-obvious (the general requirements for patentability).

That said, combinations of existing or known products and the like have a pretty high barrier to get a patent -- usually a combination of known things is required to have some "unexpected result" from the combination in order to be granted a patent. To use your example, taking milk, a known thing, and adding vitamin D, a known thing, to make milk with vitamin D, would probably not be patentable, since the combination resulted in an "obvious" result -- vitamin D fortified milk. If, however, the combination was found to improve, say, the efficacy of the vitamin D over taking it straight, or some other "heightened" or "unexpected" result, that might make the combination patentable.

You are probably best served to sit down with a patent agent or patent attorney, who can review all of the facts of your situation and advise you accordingly.

As far as trademark is concerned, trademark protects your mark -- that is, the name or logo or both that you use to identify the source or manufacturer of your product. A trademark does not protect the underlying good in any way. If you could figure out the recipe for Coke, you could make your own "Coke" and sell it, and there isn't anything Coke could do about it -- unless you called your new drink "Coke," then you would be doomed.

A trademark CAN help to prevent copying, at least indirectly -- if you are the first on the market, and people get used to buying your brand of product, then the fact that others can copy your product may not matter, because only your brand of good may be successful. So, in that sense, a trademark can "protect" a product or service. But it doesn't directly provide any protection.

 

[eladlavi]

That said, combinations of existing or known products and the like have a pretty high barrier to get a patent -- usually a combination of known things is required to have some "unexpected result" from the combination in order to be granted a patent. To use your example, taking milk, a known thing, and adding vitamin D, a known thing, to make milk with vitamin D, would probably not be patentable, since the combination resulted in an "obvious" result -- vitamin D fortified milk. If, however, the combination was found to improve, say, the efficacy of the vitamin D over taking it straight, or some other "heightened" or "unexpected" result, that might make the combination patentable.

I want to understand more the meaning of "unexpected result". The result of combination of recorded voice and a doll was very expected when they first thought of the idea, nevertheless this was a patent (united states patent 6,609,943) so I'm confused.

You are probably best served to sit down with a patent agent or patent attorney, who can review all of the facts of your situation and advise you accordingly.

Will Such a lawer be able to consult me if my idea is patentable for free or for a very low fee compare to the fee of searching in the database and registering the patent ? I don't want to pay so much for nothing..

 

[divgradcurl]

I want to understand more the meaning of "unexpected result". The result of combination of recorded voice and a doll was very expected when they first thought of the idea, nevertheless this was a patent (united states patent 6,609,943) so I'm confused.

The law has changed since that patent has come out -- a Supreme Court case that was issued last summer makes it more difficult to obtain patents on combinations of known things.

Will Such a lawer be able to consult me if my idea is patentable for free or for a very low fee compare to the fee of searching in the database and registering the patent ? I don't want to pay so much for nothing..

Call around. Some agents or attorneys may offer free, or low-cost, initial consultations.