Dear Rich: I have an Idea about a Novelty Item that I believe would be very popular on the market. Especially around Christmas time. The Toy would have information stored on a Flash Drive or a SIM card (as well as the need to be plugged into a USB port to retrieve or change the information). How can I patent an idea for something that has to have these components to work? I would bet that someone owns the patent on the Flash Drive and the Sim card as well. Yesterday, the editor for our new book (it's actually a mini-book for app developers), informed us that Tweeting (as in, "I Tweeted her yesterday.") is not capitalized. We bring this up because we wondered about your choice of capitals for Idea, Novelty Item, Toy and Flash Drive. Personally, we think this capitalization is part of an invisible-hyperlink thought process in which the writer envisions certain terms as a having a hypertext link but -- because he can't actually create one because of the contextual limitations -- he capitalizes instead to create a "signifier." Or maybe you're German. In any case, although we don't mind these capitalizations (and we created the links we imagined you imagined), we think our editor would correct them.
Right, you had a question. We agree that you will have a hard time obtaining a patent if the invention you are claiming (patent lingo for the thing you're trying to get exclusive rights to) is the flash drive and the manner in which it interacts with the USB port. However, you can use these elements and still come up with something patentable. After all, many groundbreaking inventions incorporate existing technologies -- after all, cars and radios existed when William Lear invented the car radio (and how come Motorola has erased Lear from their corporate memory?) Note however, that the ability to claim patent rights over certain combinations of existing technology has been made harder by a 2007 Supreme Court decision.
Are you sure you want to take the patent route? Even assuming you qualify, most patents take about two years to issue and you can't stop anyone from using your patented technology until the patent is issued. Considering that most novelty items have a short shelf-life, are you sure that seeking a patent is worth the effort. Perhaps copyright and trademark protection (both far less expensive) will suffice -- as they do for many novelties and toys.
Thanks to SRV for the WIlliam Lear illustration!
