Mec4040 said:
What is the name of your state?NY
Hello all,
Great site and lots of good info. My question is about an idea not yet patented.
One of the main materials has to do with velcro. Meaning, there will be a type of fabric and then velcro which will create my idea.
Being how I will need to use velcro, is it still possible for me to patent this idea as my own and collect without having to pay a fee to anyone else?
Thanks for all the help,
Lisa S
What do you mean by "collect without having to pay a fee to anyone else?"
In general, you can patent an invention that is based on someone else's patented or trademarked work, as long as your invention otherwise meets all of the requirements for patentability (novelty, etc.). However, your patent, even though it is based on the other products, does not give you any rights over the other products. For example, if I have a new invention that combines Velcro and Kleenex, I can patent this invention, but I don't have any rights over either Velcro or Kleenex -- people can still go out and purchase and use Velcro and Kleenex without infringing on my patent.
Further, if I do have a patent that includes Velcro and Kleenex, if building or using or selling my invention then infringes on Velcro or Kleenex patents or trademarks, then I am liable for infringement. A patent gives you the right to keep others from using your invention -- it does not give you the right to use your own invention.
To use a more abstract example, let's say there are two products A and B that are in the public domain, so anyone can use them. If company X patents A+B, I can still use either A or B, but I cannot create A+B without infringing on X's patent.
Now, let's say I use a third element, C, and invent A+B+C. I can get a patent on A+B+C, because it is my invention, and I can keep anyone else from creating or using A+B+C; however I myself cannot "practice" my invention, or build or sell my invention, because if I do so, I am infringing on X's patent for A+B. If I want to practice my own invention, I will need to obtain a license from X or be liable for patent infringement.
Of course, even though I can't practice my invention, I can keep X from adding C to their invention. A patent is the right to exclude, that is, the right to keep someone else from doing something -- it doesn't necessarily give you the right to do anything.
So, back to your example, if your invention uses Velcro, and Velcro is either patented or is trademarked, then if you are issued a patent for your invention, if you want to manufacture and sell your invention, you will need to obtain a license from Velcro, or face liability for patent and/or trademark infringement.