How do I go about making sure my idea is safe before I design it and can I patent the idea? 6 Answers as of August 27, 2013

I have an idea on an item that is already patented. The concept is the exactly the same, however the market and style would be completely different.

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Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
Ideas are never protectable thus they are never safe. Only the embodiment of the idea is protectable. If you have not made one yet - either constructive or actual embodiment - you have nothing to protect.
Answer Applies to: Oregon
Replied: 8/27/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
If a product has been patented then you can't get a patent on the same invention. You may be able to get a design patent on the style as the ornamental design of the invention. The patent office generally does not determine if a product is "safe" because they issue patent on weapons and other harmful products. You may want to perform a patent search to determine the possibility of receiving a patent. You can either hire a patent attorney / patent agent or perform some searching at the US patent trademark office at
Answer Applies to: California
Replied: 8/27/2013
Tran & Associates | Bao Tran
You need to be sure your additions are novel and not obvious. You can always file a provisional to protect yourself while giving you a year to evaluate your contribution to the art.
Answer Applies to: California
Replied: 8/27/2013
Gerald R. Black, Esq.
Gerald R. Black, Esq. | Gerald R. Black
Generally, a new use for an existing product is patentable. Also, most inventions are combinations of existing products. A good start would be a thorough patent search to determine if anyone else has any patent rights or a patent application that might limit your invention. While you can do some searching yourself, it is recommended that you seek the advice of counsel to assist you. While there can never be absolute certainty, counsel can help to minimize your risk.
Answer Applies to: Michigan
Replied: 8/27/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
You may be able to apply for a design patent instead of a utility patent. Have anyone who sees or learns of your idea sign a nondisclosure agreement to protect your idea, including anyone you hire to create the product, if you can't do it yourself, until you fill an application.
Answer Applies to: Nebraska
Replied: 8/27/2013
    Banner & Witcoff, Ltd. | Ernie Linek
    Market and style may not protect you from a charge of patent infringement if the patent on the original item is still in force. Check the Patent Office website for the status of the original patent. If the patent has expired - you are free to make, use and sell the item. As for obtaining your own patent - your version of the invention would need to pass these tests - especially as compared to the original patented item - (1) novelty (is your version "new" ?); (2) useful (does your item have a real-world use?); and (3) obviousness (is your version so different from the original that it is not a simple or "obvious" change?)
    Answer Applies to: Massachusetts
    Replied: 8/27/2013
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