Monday, October 11, 2010Learning to read labels

What value should be accorded to patents in cosmetics?

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‘Registered patent, international patent, exclusive patent, patented active…’ The mention of a patent can appear, at the manufacturer’s discretion, very clearly on the front label of a cosmetic product, sometimes in the form of a logo, or it can appear almost discreetly, in just one word, as part of a claim. But what, exactly, does it mean? The range of meanings can be very different…

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First let’s point out that, as long as it is not misleading (i.e. referring to a patent that does not exist or has not been granted), the mention of a patent is not specifically regulated. It depends on the initiative of the manufacturer, who wishes to draw attention to the research efforts carried out by its brand to improve the effectiveness of its products, and leads us to expect an effect that others do not have.

As a general rule, filing a patent protects an invention. It implies that there is novelty and creation through the addition, mixture, or substantial modification of one of the elements that enters into the cosmetic product. As per this definition, you must keep in mind that a patent can apply either to an aspect of the formula (the properties of an ingredient, a novel complex of raw materials, an innovative formula, etc.) or to a closing system for a jar or a pump for a bottle. Sometimes labels specify what the patent applies to, but they also sometimes completely leave out this ‘detail’.

Patent secrets

The terms ‘novelty’ or ‘invention’ can also apply to very different realities. They can apply to synthetic molecules, which are true cosmetic innovations resulting from years of laboratory research and whose properties can be used in products.

The terms can also apply to a unique process for extracting a botanical substance which better preserves its original characteristics and makes it more effective. It can also designate a mixture of known actives where the novelty lies in the synergy of these actives, even when it is already used by other brands that have failed to apply for a patent.

We mustn’t lose site of the fact that the patent application process is long and costly: the innovation must be published, registered with the National Institute of Industrial Property (INPI) for France, the European Patent Office for the European Community, and/or the World Intellectual Property Organization internationally, not to mention the additional applications that must be filed for countries that do not adhere to the international patent treaty…

In sum, the process is not accessible (either in terms of budget or of human resources) for all cosmetics companies, many – and actually most – of which are SMEs. The industry’s major players can therefore be tempted to apply for patents left, right, and centre, as this guarantees the exclusive use of their ‘invention’ for 20 years. We have even seen multinationals attempting to patent plants or substances from the plant world, like Amazonian guarana or andiroba (the phenomenon has spread so much that it has a name: biopiracy). Brazil eventually won a court case to preserve its rights to its ancient heritage, with its properties that had been known traditionally since the dawn of time!

Between true innovation and pure marketing

Nevertheless, the mention of a patent gives the image of a quality product with the promise of credible efficacy. In cosmetics, some use it as a marketing strategy to reinforce their brand image, others use it punctually when they develop a true innovation, and some simply don’t have access to patents, even when their laboratories make a discovery that deserves one.

In any case, the claim must be considered with caution; labels rarely provide the information needed to determine its true value!

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