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[trom]

I had the idea of taking the electric or battery operated air fresherner things that put out a mist every 15 minutes or so and using them in a restaurant.  Instead of just making the place smell good, they would contain a scent of chocolate pastries, with the hopes that this scent will make people want to buy dessert at the end of the meal.  I dont think chocolate pastry is a scent that is offered.   Is there any protection that I can get, or would I be infringing regardless of the scent or the purpose of the use?

[MattB]

Possibly both.

Even though an idea is patentable, you do not get a right to practice the invention if it comprises portions of another's patent.

[Landers]

First off - you should never disclose any specifics about your invention publicly.  You run the risk of others stealing your idea and you also can also ruin your chances of getting a patent (especially outside the US.)

As for whether there is any protection you could get, there is a possibility that you could get a patent on your invention assuming that it is novel and not obvious, etc.

As for whether you would be infringing anyone else's patent - that's a separate issue.

Having a patent can never protect you from infringing someone else's patent.  Your invention can be covered by your patent and someone else's at the same time - a patent doesn't give you the right to practice your invention, it merely gives you the right to prevent others.

There might not even be any patents out there still in force that would cover what you propose.