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Consult a lawyer before patenting - Adams & Adams
"Like any invention that is capable of being subject to patent protection, a new perfume, cosmetic or cold drink for example must not only be new in its own right - never have been done before anywhere in the world - but must also be inventive. It cannot simply constitute a mixture of ingredients that are commonly used in the trade unless that very mixture is something startling. This is just one hurdle all inventors face," says Alexis Apostolidis, partner at law firm Adams & Adams.
Apostolidis says the dilemma is whether one should patent what may essentially be a recipe - for example, as part of the trade-off for obtaining exclusivity in respect of one's newly concocted perfume, you have to disclose to the world what your invention comprises. "If it's a perfume, then you'd have to disclose those ingredients that it's made up of - essentially a recipe - for which you have sought protection. Of course the ingredients would have to be listed on the packaging - in a general sense, but not the exact proportions, or the manner in which they are mixed," he says.
Coke has never been patented
But the downside is that a competitor may design around your perfume and achieve a similar product whilst avoiding the infringement of your patent. "A prime example is the recipe for Coca Cola. It has never been patented and has been kept as a trade secret. Many competitors have similar products but none have managed to make their products taste the same," says Apostolidis.
Unless your product contains an indispensible ingredient without which the product would simply not be the same, and unless the indispensible ingredient is not easily substitutable with another ingredient which would have the same effect, keep the recipe close to your heart, as a trade secret, and keep your rivals guessing.
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