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Can I use a one ingredient from a patented compound, to sell a skincare product?
I’m in EU if that helps. I would make similar claims to the active ingredients. Thanks in advance.
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8 Replies
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You’ll need to be more specific to get useful answers. The answer could be Yes, No, or Maybe
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Patented for what? If it’s not cosmetic related, sure. But then again, it would be a new cosmetic ingredient… If it’s a cosmetic ingredient patented for action A and you want it to use for action B, you’d have to proof that it actually only has action B. Proofing means likely court and lawyers and the like if the patent holder gets a hold of you.Take Thiamidol as an example: It could also be used as antioxidant. However, there is no point in adding Thiamidol as such. Every judge will see (at least after getting brainwashed by a dozen Beiersdorf lawyers who know how to deal with such cases) that you only try to cut around the patent and are in fact after the anti-pigment effect. Proving that Thiamidol in your product does not reduce pigmentation but solely acts as antioxidant isn’t worth the trouble, certainly not as long as there are cheaper antioxidants available. -
Thank you for responding.
To give more details. For example, if I use some actives that are non-patented and have research surrounding them as a potential acne solution, and then there is a patented compound that contains glycerin, an active, and one or two other ingredients, I guess I am unable to use that active from that compound and make similar claims?
What if I use the active but do not overtly advertise that active in the description, and make the other actives (non-patented) the stars of the show, so to speak?
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If the Patented Active has claims specifically for Acne that are patent-protected, then, No, you cannot use that Patented Active in a product making acne claims. You would most likely, eventually, get sued for patent infringement.
If that Patented Active is in any product that you advertise for Acne, even if it is not heavily promoted in you product marketing, it is still in the formula and you are committing a patent violation.
It sounds to me like you are tyring to be way too clever by half in your attempt to circumvent a patent.
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Also, anti acne products in the US are regulated by the FDA as OTC drugs. Patented ingredients (even if they claim anti acne) cannot be used as the anti-acne active. Only ingredients approved on the OTC monograph can be used as the active ingredient in anti-acne products. Other ingredients can be used but no anti-acne claims can be made.
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You need to read the patent and see what exactly is patented. For example in case with L’Oreal’s C E Ferulic, a specific combination of ingredients at specific ranges (they took rather broad range for all of components in that patent) is what patented. But it doesn’t mean you can’t use individual ingredients.
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Pharma said:Patented for what? If it’s not cosmetic related, sure. But then again, it would be a new cosmetic ingredient… If it’s a cosmetic ingredient patented for action A and you want it to use for action B, you’d have to proof that it actually only has action B. Proofing means likely court and lawyers and the like if the patent holder gets a hold of you.Take Thiamidol as an example: It could also be used as antioxidant. However, there is no point in adding Thiamidol as such. Every judge will see (at least after getting brainwashed by a dozen Beiersdorf lawyers who know how to deal with such cases) that you only try to cut around the patent and are in fact after the anti-pigment effect. Proving that Thiamidol in your product does not reduce pigmentation but solely acts as antioxidant isn’t worth the trouble, certainly not as long as there are cheaper antioxidants available.re-read Pharma’s quote.
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Thanks for your responses, it gives me a lot to think about. I guess the first step would be to read the patent and see what exactly is patented.
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