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Formula Patents
I am hoping to clear something up. I understand that it is not recommended to try to patent a formula since most cosmetics and personal care products are not unique and formulas can easily be recreated. However, I have been told that a patented formula protects you from being sued later on (if your product becomes successful) by someone claiming that you are using their formula. Is this true? I am happy not to try to patent my formula to save money for marketing however this claim makes me nervous.
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6 Replies
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Actually, both statements are true. If, and only if, you are in a position where you’ve encountered non-public domain formulas (patents and formulas on the web don’t count), having a patent or even just a patent application will shield you from most lawsuits.
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And I’ll bet it’s a patent attorney that told you that!
I really would not worry about it that much unless you have a proprietary, patentable ingredient that you’re trying to protect and you manufacture that proprietary ingredient. If you are simply buying all of your ingredients from suppliers to make your product, it is a very, very low likelihood event that would you ever get sued for patent infringement, unless you are obviously violating an existing patent at the time you go to market.
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Thanks for this. I appreciate it.
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You can indeed obtain a very strong patent on a formulation which uses a unique combination of ordinary commercially available ingredients or even merely employs a unique method of compounding such ingredients (even though that particular combination has already been in the public domain), provided that there is an obvious comparative benefit realized that can be described as a distinguishable improvement over what has already been disclosed or made public.
A general rule of thumb to follow prior to even considering investigating the possibility of obtaining a patent is simply to be able to answer affirmatively that you have created something which performs beyond what has ever been done before (advances beyond the state of the art).For example, suppose you discovered that mixing common material A (for example, mineral oil) with common chemical B (for example, a common surfactant) in a certain proportion under certain conditions (such mixing technique or apparatus, in a vacuum or under pressure, in sub zero chamber or under high heat, or some other procedure) produced a material which you could rub on skin that would remove hair instantly with a wipe on/wipe off action. That would meet the requirement of providing a distinguishable benefit which nothing else can offer, but there would be nothing remarkable about the ingredients, just the way you put them together. Basic rule: You can describe it as, “No one has ever seen anything like this before.”
If that’s the case, then it is time to go find a good patent attorney. But, that doesn’t mean you will get a patent for certain, because someone may have already discovered what you did, already patented it, but have yet to produce it. A good attorney though may be able to find just enough differences that you may be able to have some survivable claims. So, don’t try to rule out your patent worthiness on your own. Remember the rule about the “man who acts as his own attorney has a fool for his lawyer.”
In addition, you can copy an existing formulation (even a brand name product which you bought right from the store shelf) duplicating their ingredient listing, even disclosing in your patent application what commercial product you copied and receive a patent (known as a utility patent) if you describe and claim as your invention as usage which has never been described for the product you copy by the manufacturer of the product or in any publication; in other words, “not public knowledge.” For example, suppose you found that a brand name eye liner remover would remove warts when applied and covered with a bandage overnight. You could patent that formulation, describing how you purchased the eye liner remover for its intended use and accidentally discovered that it would remove warts. You would identify yourself as the inventor of the formula as a wart remover. That patent actually will keep the original inventor of the eye liner remover formula from selling it as a wart remover.
Incidentally, I had this happen to me not long ago with one of my products, copied by one of my distributors, (I am actually mentioned by name as the original producer of the material he copied in his patent). It is possible that in my situation I may be able to challenge the patent holder’s (who is now selling millions of dollars per year of my formulation under his brand) ability to keep me from competing because I had made some general product claims which reasonably may include his subsequent narrow usage and I may take legal action soon to do that.
So, don’t limit yourself on considering patenting your product just because you are using ordinary or commonly available ingredients or even if someone else has product as similar formulation. Patenting is all about claiming a benefit which no one else has ever “discovered.” See a good patent attorney who will tell you the truth about whether you have something patentable.
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I see limited benefit in getting patents on cosmetic formulas. You’ll get much more return on your investment by spending that money on good marketing.
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The French cosmetics company L’Oreal has a current ad slogan, “440 patents creating the perfect chemistry - because you’re worth it.”
Of course, cosmetics are sold with promises and hope and patents probably aren’t the primary motivation for the women who spend their money on beauty products.But, actually, L’Oreal is underplaying its number of patents. According to the Patent Office, L’Oreal has 28,462 patents. 20,000 are for lipstick, mascara and nail polish products. And data searches will confirm that all the other major (and many minor) cosmetic contenders are just as aggressive in pursuing the patent accumulation campaign.The logic is that L’Oreal (and virtually every other significant cosmetic developer) believes what recent litigation and licensing experience is showing; that patents (and trademarks) are increasingly becoming weapons around which marketing wars are fought.If you’ve created something truly unique, a $20,000 investment (the price you’d pay for a budget automobile or a modest boat for the lake) in attorney fees could be the best marketing move you could ever make. In fact, if you’ve got something that will turn some heads you can make a fortune just on licensing fees (the bulk of my income for the past 40 years as a developmental chemist has come from licensing).But, I will also agree with Perry’s statement. You can be quite successful with well done “me too” products using proven public domain technology or taking advantage of newly patented technology being offered from your chemical ingredient suppliers. If you create an excellent product employing those resources, then, yes, your available cash is very wisely spent on marketing.Patenting is a gamble. You should follow the same rules with patenting that you take to the horse track or to Vegas, “don’t risk any more than you can afford to lose.”
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