Orlando, FL asked in Patents (Intellectual Property) for Florida

Q: Is a patent possible in this circumstance

If there is a product currently in the market place which has always been manufactured using either leather or traditional wood from trees and I start manufacturing this product but instead of using leather or lumber from trees, I use a different material, like bamboo, which gives the item a very unique appearance.

Would I be able to protect this item under a design patent and if so, how much protection would I actually be obtaining.

For example, (this is not my item, but the senerio is somewhat similar)

A golfers bag. I believe these have been made from bamboo long ago, But if they had not, and they had only been made from leather and I came up with the idea to start making them from bamboo because, not only did it still serve the same function as leather but it had a different, unique and desierable appearance.

Can I patent that so no one else would be able to manufacture golf bags from bamboo? Or would I only be able to obtain a patent on my design?

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: Using your example with respect to a golf bag. If the sole difference was that you used off-the shelf sheets of flexible bamboo leather substitute and made a bag from that -- then you would have a hard time getting a utility patent. Substituting one product for another where the modifications to the process were fairly routine is not enough to get a patent.

You might be able to get a patent for the ornamental appearance of the golf bag but that would be more like protecting a designer purse with a design patent to prevent knock-offs than a broad patent on the concept of using bamboo in golf bags.

If when you go to use bamboo material, there is not something that will be sufficiently pliable, and durable in rain and sun -- and you find a way to modify bamboo to make the first bamboo material that would work in an application like making a golf bag, then you may be able to patent that process of modifying the bamboo to make it suitable for this use.

If it turns out that people have used this sort of process a thousand years ago to make vases that contained flowers and water -- then you won't get the patent if the patent examiner learns of that earlier use of the same process.

If you cannot use off-the-shelf bamboo material for your project but need to do some unusual steps then you need to consider whether you are doing a process well-known for modifying other thin wood sheets.

You may want to do some searching using search tips -- http://bit.ly/Patent_Searching

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

Griffin Klema
Griffin Klema
Answered
  • Patents Lawyer
  • Tampa, FL
  • Licensed in Florida

A: Kevin's answer is pretty close. To put it succinctly, unless you have discovered a new way of manufacturing the bamboo into a golf bag (e.g. a new way to join the pieces of bamboo), you probably can't get a utility patent. Regarding design, you may be able to get a patent for a bamboo golf bag, but much of that depends on how your ornamental design differs from what has come before. You may be able to protect only a small aspect of the bag, like the bottom or top, or a unique feature on the side. The cost of a design patent is also far less than utility. Expect to budget about $1,500 for the application. The product sounds cool, and good luck!

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