2 questions

[razzer10]

Hello, I am in California.
First question: Is it illegal to copy ingredients? For instance, If I owned a manufacturing plant and wanted to sell private label products, could I ultimately have my lab examine a branded product I would like to copy (such as Listerine), then reproduce it and resell it under my name?

Second question: Do I need a patent to protect a concept of a bottle shape that coincides with it's name? Example, if I wanted to create a new line of fragrance aptly named "Woman inside", and shaped the bottle like a woman, would I need a patent to protect the concept it from others copying the idea?

I appreciate your time and help!

Kevin

 

[divgradcurl]

First question: Is it illegal to copy ingredients? For instance, If I owned a manufacturing plant and wanted to sell private label products, could I ultimately have my lab examine a branded product I would like to copy (such as Listerine), then reproduce it and resell it under my name?

If the product (Listerine) is not patented, then this would be perfectly legal. You couldn't BUY Listerine and repackage it and sell it under your own name -- that would be a trademark problem (reverse passing-off) -- but you can reverse-engineer and reproduce a non-patented product and sell it under your own name.

Second question: Do I need a patent to protect a concept of a bottle shape that coincides with it's name? Example, if I wanted to create a new line of fragrance aptly named "Woman inside", and shaped the bottle like a woman, would I need a patent to protect the concept it from others copying the idea?

Probably. Copyright law does protect tangible expressions of creativity, like a sculpture, but the problem in your case is that there is a fine line between the "creative" part of your bottle and the "utility" part of the bottle. Copyright only protects the "creative" part, so if your competitors could convince a court that the "woman" shape was incidental to its utility as a bottle, they could potentially skirt around copyright laws.

A design patent, while more expensive than a copyright, will provide you with stronger protections.

If the shape of the bottle is synonymous with your company logo, then it is also possible to use trademark protections to protect your design.

 

[razzer10]

Copying

Thanks for the answers, however your answers created a couple more questions:

Where do I find out whether a formula is patented or not? If it does not say it directly on the bottle, can I assume it is not a patented formula?

And, if it is a patented formula, can the assumption be true that one small modification of an ingredient nullifies that patent?

 

[divgradcurl]

Where do I find out whether a formula is patented or not?

You can search at www.uspto.gov, or you can hire a search firm to search for you -- google can help you find a patent search firm if you decide to go that way.

If it does not say it directly on the bottle, can I assume it is not a patented formula?

No. There is no requirement that a patent holder "mark" his product. It's advantageous to the patent holder if he does mark his product -- the marking can affect how much in damages he can recover in an infringement suit -- but, like I said, there is no requirement that a patented product be marked.

And, if it is a patented formula, can the assumption be true that one small modification of an ingredient nullifies that patent?

Not necessarily. This question is actually singificantly more complex than it may appear. A change to the invention may be sufficient to create a new product that is not covered by the patent -- but you need to carefully figure out what the actual underlying invention is first, usually by a very careful reading of not only the patent, but also the prosecution history of the patent. There is also the concept of "doctrine of equivalents" that, in some case, allows for a patent to cover not only what is claimed, but also "equivalent" systems, structures, ingredients, etc. The breadth of coverage of the doctrine of equivalents is dependent on both caselaw and the prosecution history of the patent.

Finally, patents are not suually so specific that they cover only the exaclt product. In your Scope example, the Scope product may be 20% alcohol, 50% water, and 30% something else -- but the patent, if there is one, almost certainly will claim a mixture of alcohol, water and something else, and leave the 20/50/30 ratio to be described as a "preferred embodiment" of the invention. This means that merely changing the ratios would not take a new product out from under the scope of the patent. Now, if you added something else in addition to the three ingredients, that MAY be something new and outside the patent, but again, that determination will require a detailed study of the patent and its prosecution history.