Patentiblity questions

[JeffRaz]

What is the name of your state? MI


Ok, I have a few inventions that I willl be looking to patent shortly and I'm trying to get a feel for what would be considered a strong patent and what would be considered a weak patent- meaning if someone tried duplicating my idea what would be the lilklihood of me being successful in a patent infrigement suit.

1) I've owned three pizzerias that were recently sold and what always intrigued me was the stuffed crust pizza that Pizza Hut developed or from what I read they actually stole the idea from a company called Angelo Mongiello's Children, LLC. I always wanted to implement stuffed crust pizza in my pizzerias, but I feared of being sued by Pizza Hut for patent infrigement. I never hired a patent attorney to look into it since I intended on selling my pizzerias within the year, but my question is it seems now that all the big chains are coming out with some sort of stuffed crust pizza and correct me if I'm wrong, but the reason I believe they are able to do this is because the so called original inventors of stuffed crust pizza had the idea patented back in 1987 and since a patent is valid for 14 years their patent would have become public domain back in 2001 and thereafter anyone was free to use it with no compensation to the original inventors.

Ok, now to my question, would the stuffed crust pizza invention be considered a strong patent or a weak patent? I realize the criteria is usefulness, novel, and non-obvious and where I get confused is that although it would meet the three criteria's stated above or at least I think it would, all that the inventors were really doing is using two common ingrediants in a pizza which are cheese and dough and furthermore all they were doing is putting cheese on the edges of pizza and folding it over which to me is not that far of a cry from putting cheese over most of the dough to make a normal pizza and pinching the edges when setting the dough in the pans, so my question once again would be would this "stuffed crust pizza" be considered a strong patent?

2) My second question is can someone take an invention from one product and then apply it to another product and receive their own patent for the different product. For example, suppose I had a great idea for a patent that would apply to boats, however this idea has already been invented and is being used on vehicles and I'm confident it is not being used on boats. To give more of an insight of what I'm leading up to I will try to use a good anology. Everyone has probably heard of the intermittent wiper (the wiper on the back windows of SUV's). Now suppose that the guy who invented this technology had it patented for cars and then I came along and said wow what a great idea and I then come up with a simlilar idea for boats to have an intermittment wiper on the back window of the captains cockpit. Would I be able to get a patent on this since the technology was out there, but the patent was only for vehicles and not boats? ANother good example would be going back to my pizza days and I read in a pizza trade magazine that the 3 legged plastic that you see in the middle of pizzas to prevent the box from caving into the pizzas was invented by a lady from NY and supposedly she made millions from this idea. Once again, if I had taken that idea and came up with a similar aparatus for cakes would my patent be a strong one or would the lady who invented the pizza device have a blanket patent for any similiar device used for other foods even though her patent only focused on pizzas?

Like I said I'm just trying to get a feel on what to expect since I have one invention that I'm certain is novel and another one that would be taking an invention from one product and applying it to another product. ANy comments or insights appreciated!

 

[divgradcurl]

I never hired a patent attorney to look into it since I intended on selling my pizzerias within the year, but my question is it seems now that all the big chains are coming out with some sort of stuffed crust pizza and correct me if I'm wrong, but the reason I believe they are able to do this is because the so called original inventors of stuffed crust pizza had the idea patented back in 1987 and since a patent is valid for 14 years their patent would have become public domain back in 2001 and thereafter anyone was free to use it with no compensation to the original inventors.

Well, a minor correction, the length of time a patent remains valid will depend to when it was filed and issued -- but, in general, it will be either 17 years from the date of issue or 20 years from the "earliest effective filing date." Not 14 years.

As to whether or not there was a patent, I don't know, but once a patent expires, anyone is free to use the idea.

Ok, now to my question, would the stuffed crust pizza invention be considered a strong patent or a weak patent?

There is an answer to this question -- sort of -- but probably not what you are thinking. Whether or not a patent is ultimately enforceable depends on two things -- what the claims say, and what the alleged infringer is actually doing. It is beneficial to the patent holder to have claims in the patent that are as broad as possible -- because you have to infringe each and every part of a claim to infringe, the broader the coverage of the claims, the more difficult it is to "design around" the language in the claim. I guess a broader patent would be a stronger patent.

The opposite is also true -- the narrower the patent claim language, then the easier it is to design around the patent and avoid infringement.

The problem is, it's not always easy to determine when a patent is entitled to broader protections and when it isn't. Certainly there are some cases where you can look at the claim language and instantly tell that the scope of the patent is very, very narrow -- I guess that would be a "weak" patent -- but it is much more difficult to determine a broader scope. The reason for this is, even if there is broad language in the claims, the breadth of the claims might be limited by the language in the patent's specification, or may be limited by remarks made during the prosecution of the patent (prosecution history estoppel), or may be limited by case law. In other words, it's not easy to determine the breadth of a patent -- it takes a fair amount of analysis to determine.

Beyond that, if someone is infringing on a patent, then it really doesn't matter if the patent is broad or narrow -- if the infringer is really infringing, then ANY patent is going to be "strong" enough to assert against the infringer.

2) My second question is can someone take an invention from one product and then apply it to another product and receive their own patent for the different product. For example, suppose I had a great idea for a patent that would apply to boats, however this idea has already been invented and is being used on vehicles and I'm confident it is not being used on boats. To give more of an insight of what I'm leading up to I will try to use a good anology. Everyone has probably heard of the intermittent wiper (the wiper on the back windows of SUV's). Now suppose that the guy who invented this technology had it patented for cars and then I came along and said wow what a great idea and I then come up with a simlilar idea for boats to have an intermittment wiper on the back window of the captains cockpit. Would I be able to get a patent on this since the technology was out there, but the patent was only for vehicles and not boats?

Again, there really isn't a simple answer to your question here. In general, a new use for an existing invention could, in principle, be patentable if it otherwise met all of the other criteria for patentability. However, in practice, it's usually pretty tough to get around an obviousness rejection when you are simple using an invention unchanged (or little changed) in a new way. Both of the examples you give would almost certainly be rejected on obviousness grounds.

Like I said I'm just trying to get a feel on what to expect since I have one invention that I'm certain is novel and another one that would be taking an invention from one product and applying it to another product.

Unfortunatley, it's tough to give general answers to these types of questions. Your best bet would be to talk with a local patent agent or attorney (agent will probably be cheaper), who can review all of the relevant facts and give you an opinion based on your actual invention.