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You can’t patent that.

May 20, 2017

For the brand that asked this week, with love x

Dear brand owners,

You cannot patent a blend or ‘recipe’.

No matter how good it seems.

The end.

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Patents are granted on the basis that something amazing, unusual, synergistic, un-expected, happened when you got your recipe together.

Maybe you got an outrageously high SPF by stumbling across the best dispersing agent and then adding a rather unique combination of things as film formers.

You might be able to patent that combination on the back of your results IF the results were indeed extraordinary, but you’d have to have the results first and they would have to stand up to scrutiny.

Maybe you have been trialling your product on your friends and they all say it is wonderful and has helped to clear up their minor scratches and boils in no time. You want to patent this as you’ve never seen that level of efficacy before.

To be even in the running for a patent you should first run some properly constructed clinical trials.  This is sure to cost you several thousands if not tens of thousands depending on the complexity and sample size.

After that, if you get a result showing that yes, your product did work when compared to something else you should then be able to explain how and why – what is the key to this invention.  That might involve more analytical testing to work out exact activity levels of ingredients and to establish whether this activity is re-producible or a freak of nature.  Again, more money and time.

By now you might be starting to get the picture that patenting is a big and expensive deal.

If you do have something worthy of patenting (and some people might) then you would have to decide on the detail (or scope) of your application.  I’m far from an expert at this and so would suggest you start a conversation with a patent attorney who should be able to guide you through the maze of paperwork and legal terminology and protocol.  Again, expect to pay quite a lot for this too.

This is one such company that I know people here in Australia use for this work: Engle, Hellyer and Co

Here is another one that might be worth talking to: Patentec

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So is a patent worth it?

If you do think you have something worth patenting and you do eventually gather enough evidence to prove you do then yes, of course it is. A patent is something of immense value to you and your business.

At what point to I go to a patent attorney?

The answer to that is I don’t know, I guess in some cases it could be as soon as possible but my gut feeling is that you are going to need some convincing evidence before you start spending big bucks on a legal professional – expect to pay $200-$500 per hour for the time and advice.

 Before you do anything the first thing you have to do is have a really good look around to see if you can see if anyone has done what you are suggesting before.  You’d be surprised by the number of people who mention they are going to patent something to me and I mention that they should look at this or that brand as that’s what they do already. A true patent search is costly and will be something you get a professional to do but a thorough check of your market category relative to the patent area might save you thousands and much time in the long-run.

Next and providing the above came up with nothing much, I think it is a good exercise to imagine you already have the patent you want . Try to work out how you would gain a commercial advantage with that patent, how much scope for capitalizing on it is there? What would you be up against? Is THAT idea patented?  It might surprise you to realise that there are other products out there that have different yet similar results to what you are offering, you might end up being a competitor of theirs, that means the price you can offer your solution at will be influenced by the existing market price.  Does that make commercial sense?  Is it still worth the hassle?

If there is a business case for you the next step will be to produce evidence that is water-tight – not subjective or un-controlled or ad-hoc. I would strongly suggest that brand owners approach gathering this data like they would approach going to court to defend themselves in a situation. Have a strong grasp on the bit that you want to patent so you don’t lose sight of that – it is likely you can’t just cover everything in the patent. Make sure you are backing up your case with facts, figures, data and methods that can be validated (repeated) and that stand up to scrutiny.

Lastly I would remind everyone again that this process is not cheap and that you should be prepared to part with several thousand dollars to get started and maybe tens of thousands before your process is complete.  In most cases the cost alone will mean that the patent process is just not viable for most.

I really hope that some of you have found amazing solutions to problems that can be patented and I also hope that some of you do make it through the legal jungle and get yourself a patent granted but for the rest of us mere mortals don’t forget that patent or not you can still have fun, make money and help make peoples lives better every day just by doing what you do.

Have fun!

 

 

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