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[jarred15801]

Allright I had some questions about an idea of mine.  It's patenting a known beverage in a known container, but the two have never been together yet.  Let me explain better but without giving my idea away.  I'll use chocolate milk for an example.  Everyone knows if you mix milk and chocolate together you have chocolate milk, that can't be patented, it's been around forever.  That's an example of the beverage and reasoning for why I can't patent it.  The container is commonly used today for products allready.  It's used quite often actually.  I'll use a pudding or yogurt container as the example.  I can't patent the container because it's allready in use and has been for a long time as well.  My question is this though, could I patent the idea of manufacturing this known beverage (ex. chocloate milk) in this known container(ex. yogurt container).  Let me try to explain one last tiem to make it very clear.  I know I can't patent the container or the beverage, but could I patent the idea to manufacture and sell this beverage in containers like this? Thank you very much.

[Wiscagent]

If beverage X in container Y is novel and non-obvious, then yes it is patentable.

You wrote that the X/Y combination is novel, so I'll take your word for that.  But it is more difficult to determine whether or not it would have been obvious to a person having ordinary skill in the art.  Frequently the determination of whether a combination is obvious is contentious, and that determination is the subject of many disputes with the patent office and in the courts.

[jarred15801]

Well i"m not sure if this means anything but the beverage is not manufactured or distributed by any company.  It's just commonly made by people and resturants in house but never manufactured in bulk and distributed to stores.  So it's not like i would just be manufacturing somthing in just a different container then the rest.  It isn't manufactured and distributed in any container as of now.  It's just if my idea works id like to be able to have the rights so i can keep people from selling the same beverage in the same type of container as mine.

[Isaac]

It's just if my idea works id like to be able to have the rights so i can keep people from selling the same beverage in the same type of container as mine.

This just an opinion, but if you simply claim putting beverage Y into container Z, assuming the combination is novel, the examiner will easily be able to put you in the position of having to present evidence that the combination is not obvious.  Is there some reason why container Z could not hold beverage Y?

[CriterionD]

Another question - is there any reason container X could not, hold beverage Y effectively?  And would a resulting patent grant broad enough protection to block a competitor using container X?

This is just to say that a patent is not a prerequisite for taking a product to market, and just because you could "patent it" doesn't necessarily mean that it would be worthwhile to do so.

[jarred15801]

Another question - is there any reason container X could not, hold beverage Y effectively?  And would a resulting patent grant broad enough protection to block a competitor using container X?

This is just to say that a patent is not a prerequisite for taking a product to market, and just because you could "patent it" doesn't necessarily mean that it would be worthwhile to do so.

This is complicated to explain to you guys without describing exactly what my idea is.  Thank you guys for trying to help though.  I know just patenting somthing is not what needs to be done just to take something to market.  And container x does hold beverage y effectively.  But this is the thing behind it, like i said before this beverage is only made in house at resturants and by people at there house and what not.  It is not manufactured for distribution, therefore it has never been packaged in the type of containers im speaking of because it was never necessary because it never needed to be shipped or stored or anything required to deliver manufactured goods.  There really is no other option of container to manufacture and distribute this good besides the one i speak of.  That is why i believe if i could patent this type of sealed container that contains this beverage then it would limit any chance of competition.

[jarred15801]

bump

[jarred15801]

any help?

[JustAnotherExaminer]

Another question - is there any reason container X could not, hold beverage Y effectively?  And would a resulting patent grant broad enough protection to block a competitor using container X?

This is just to say that a patent is not a prerequisite for taking a product to market, and just because you could "patent it" doesn't necessarily mean that it would be worthwhile to do so.

This is complicated to explain to you guys without describing exactly what my idea is.  Thank you guys for trying to help though.  I know just patenting somthing is not what needs to be done just to take something to market.  And container x does hold beverage y effectively.  But this is the thing behind it, like i said before this beverage is only made in house at resturants and by people at there house and what not.  It is not manufactured for distribution, therefore it has never been packaged in the type of containers im speaking of because it was never necessary because it never needed to be shipped or stored or anything required to deliver manufactured goods.  There really is no other option of container to manufacture and distribute this good besides the one i speak of.  That is why i believe if i could patent this type of sealed container that contains this beverage then it would limit any chance of competition.

MPEP 2141 III. Rationales to Support Rejections Under 35 U.S.C. 103 (in re KSR)
...
B. Simple substitution of one known element for another to obtain predictable results.
...
To reject a claim based on this rationale, Office personnel must ... articulate the following:
1) a finding that the prior art contained a product which differed from the claimed product by substitution of some component with other components;
2) a finding that the substituted components and their functions were known in the art;
3) a finding that one of ordinary skill in the art could have substituted the known element for another, and the results would have been predictable.

Ultimately, you need to talk to an attorney. Of course, the attorney will tell you it's patentable just to take your money. 

[doug vagedes]

Well i"m not sure if this means anything but the beverage is not manufactured or distributed by any company.  It's just commonly made by people and resturants in house but never manufactured in bulk and distributed to stores.

My question is, that if anyone can make this drink that easily in their homes or resturants, than why would they want to buy yours?  Barriers to entry are a major consideration when determining risk.  Basically if the competition or in this case the consumer can produce the same thing for little cost or risk, then you have more risk of not making a return on your investment.

Now, if the container you are talking about adds value to your drink /container combination, and certainly it is not easily produced by a consumer you may have an edge over them.  But again the barrier to a competitor may be minimal because they have the resources to get a container if they choose to.


Best of success

Doug

[Kaitlin]

Some thoughts for you out of left field here:

Am wondering if you might be able to achieve the goal you want more easily and cheaply through trademark than through patent protection.

If your container construction works somehow with the drink to create a novel and useful combination, then as the patent people have pointed out you may be able to get patent protection for that combination, but it could also be difficult and expensive to succeed with that.

On the other hand, if your primary concern is just to make sure no one else imitates your idea in trying to sell this drink in this kind of container, you might want to explore whether trademark law would get you where you want to go.  Packaging or containers can count as trademarks if they are functioning as trademarks -- like the unique shape of the old coca cola bottle.  (When packaging serves as a trademark, it is known as "trade dress".)

Patents last 20 years from when you apply for the patent and preclude anyone else from making, using, or selling your invention without your permission.  A trademark, if properly used and protected, can last forever; its focus however is not on the USE of your technology, but rather on the SELLING of your goods.  A trademark is a name or symbol (or package design) which the public recognizes as an indicator that all goods with that name or symbol (or package design) come from one source.  Trademark infringement occurs when a competitor uses a similar mark which creates a likelihood of confusion in the minds customers as to the source of the goods. 

Patent law will protect your idea if it's novel, useful, and non-obvious; trademark law is more concerned with marketing (and helping consumers): it protects the symbol you've chosen to set your goods apart from other similar goods in the market place. 


So while trademark protection would not keep other people from making or using of their own combination of the container with the drink in their own homes as a patent would (at least theoretically), trademark law might be able to keep others from selling the drink in any similar looking container.   

If you think this approach might suit your needs, talk with an IP attorney who understands both patent and trademark to see which area of law is better suited to your goals in light of the practicalities of the full facts (which you are wise not to spell out here) and your budget.

[MYK]

You don't need to answer these questions here, and in fact you shouldn't do so, but I thought I'd try to point this in a direction that makes a little sense to me, because quite frankly it doesn't at all so far.

Is there some particular reason that the beverage has to be in a particular type of container?  Would a plain old Coke bottle or yogurt cup or 2L plastic bottle work as well?  Why not?  Why isn't the beverage being sold pre-mixed already?

If it's just a fancy bottle for the sake of looking neat on the shelf, Kaitlin's trade dress argument sounds good to me.  But if you have to keep one component out of the other component so that it doesn't turn into an undifferentiated sludge while sitting on the shelf for six months, then I can see a functional need for a fancy container, and a patent application would be appropriate.

In that case, is there some novel property of your version of the container that isn't present in currently-common versions of the container?  Is that property essential?

[jarred15801]

My question is, that if anyone can make this drink that easily in their homes or resturants, than why would they want to buy yours?  Barriers to entry are a major consideration when determining risk.  Basically if the competition or in this case the consumer can produce the same thing for little cost or risk, then you have more risk of not making a return on your investment.

Now, if the container you are talking about adds value to your drink /container combination, and certainly it is not easily produced by a consumer you may have an edge over them.  But again the barrier to a competitor may be minimal because they have the resources to get a container if they choose to.


Best of success

Doug
[/quote]

The reason they would buy my product is because I could make it much cheaper then they would be able to because of certain ingredients I could get at a fraction of the price then they could.  Secondly, the container does add value.  It will allow the drink to have a longer shelf life and transport easier because it will not open or leak.  Yes the container is already used on some products but not on this one.  The beverage is usually given to the customer to consume at that point not to store and transport.  If I used the container I'm talking about then I would make this possible, that's another benefit to the product besides the cheaper price.  And consumers would not bother with manufacturing the item at the level that I am due to the type of business they are in, it would just not make sense or be economical for them to do so.  They specialize in something else and would just like to sell my product not go through manufacturing it the way I would to reduce costs and make it on their own.  It would make more sense for them to buy from someone like me.

[jarred15801]

Also no i did not design this container or come up with it.  I am not trying to patent this container or trade mark a design.  I'm just trying to keep any other company from being able to compete by keeping them from manufacturing this drink in a container like this.

[Kaitlin]

I am not trying to patent this container or trade mark a design.  I'm just trying to keep any other company from being able to compete by keeping them from manufacturing this drink in a container like this.

Unfortunately, if that's the case, you're probably out of luck, unless there is some way you can hide how the container works with the beverage and make it your trade secret.