Patents from Zduńska Wola in Hollywood?
The cosmetics industry remains one of those industries where the role of innovation cannot be overestimated. Patent law makes it possible to monopolize innovative solutions and ensure their unimpeded exploitation.
Maximilian Faktorowicz was born in Zduńska Wola in 1872. He went to Moscow where he founded a drugstore and practiced in the theater as a makeup artist. In 1904, he made it to America. There, using the experience gained from working in the drugstore and at the theater, he became involved – intellectually and financially – in the development of the art of make-up for the needs of the film industry. He owed his enormous success above all to the innovative solutions he used in his products. Cosmetics created for the film industry soon found themselves on the market, whereas Max Factor products are still valued today. Maximilian Faktorowicz died in Los Angeles in 1938, but the company he created has been setting trends in the cosmetics industry in the next decades, basing its development strategy on innovation protected by patents.
Patent
A patent is a right that grants exclusive use of an invention – an innovative technical solution which it covers. Patent protection lasts 20 years. It should be remembered that patent law is territorial and that a patent-guaranteed exclusivity covers only the area in which the right was granted. The invention is defined in patent claims written in a patent document. They are complemented with drawings and description of the invention.
An invention can be any solution in any technical field provided that it has not been known before, it does not ensue in an evident manner from what has been known before, and it is suitable for use in industry.
In principle, inventions can be classified into one of four groups:
- Spatial products (e.g. equipment)
- Amorphous products (e.g. chemical compositions)
- Methods (e.g. production methods)
- Applications (e.g. applications of known substances to achieve a specific goal).
Patents in the cosmetics industry
In the cosmetics industry, we come across patents from each of these categories.
Spatial products are, among others, devices, tools, instruments or their parts, consisting of spatially or functionally connected elements serving the implementation of a specific technical purpose.
An example of such solution in the cosmetics industry is the invention protected by patent PL/EP 2330941 (Avon Products, Inc.) named Ergonomic Mascara Applicator.
As indicated in the description of the invention: the application of mascara with conventional mascara applicators usually requires dozens of repeated strokes and rotations or twists to achieve the desired eyelash appearance. Because of the manner in which a conventional mascara applicator is held and manipulated, the application of mascara can be a difficult and tiresome exercise. A solution to these difficulties is provided by the invention, which is an ergonomic applicator for applying a cosmetic composition to the eyelashes comprising (i) a handle portion and (ii) a head portion. The applicator described in detail in the patent document would be also presented in accompanying drawings:
Amorphous products include chemical compounds and compositions with specific components, often defined by quantitative and qualitative indicators or physicochemical parameters.
An example of such solution in the cosmetics industry is the invention protected by patent PL/EP 1765277 (Avon Products, Inc.), named Mascara Composition.
The description indicates that, with presently marketed mascaras, thickening and lengthening of the eyelashes is typically achieved by incorporating in such products a high level of waxes and film formers. This generally leads to difficulty in washing the mascara off the eyelashes, which in turn causes damage to the eyelashes. Attempts to solve this problem by use of thin moisturizing mascaras have been unsuccessful as such products usually are not thickening or lengthening in effect. Moreover, they do not wear well and smudge and smear easily. As indicated further in the description of the invention: to remedy the deficiencies of prior art compositions, the inventors have developed a composition that thickens and/or lengthens […] the eyelashes yet is readily removable therefrom by washing. The composition described in the first independent claim provides, among others, for the use of a mascara base and a keratin conditioning agent in an amount effective to improve the aesthetic appearance of the eyelashes to which the mascara composition is applied; the composition is an oil-in-water emulsion and the eyelash conditioning agent is present in an amount of about 0.5% to 5%. Further, the claim enumerates a number of other substances included in the composition, in particular, vegetable protein derivatives, sometimes with a precise indication of their amount.
Methods, in turn, are used, for example, in the production process. They are defined by a set of activities and also, possibly, by the applied conditions and raw materials.
An example of such solution used in the cosmetics industry is an invention protected by patent PL 206409 (Colgate-Palmolive Company), named Method for Producing and Filling a Multiplechamber Sachet.
The invention is a method of producing and filling a multiplechamber sachet comprising a dispensing outlet, a device used, among others, in packaging liquid cosmetics. The method is described in detail in the first patent claim, where it is indicated that the process involves two sources of film forming outer film walls and a film forming an internal partition wall, providing a nozzle dispenser outlet with two dispensing channels. Also indicated are the subsequent stages of supplying and combining the above elements, their sealing and filling of the sachet. The implementation of the invention is also illustrated in accompanying drawings:
The last category is the use of a substance known in the current state of the art for achieving a new effect.
An example of such solution used in the cosmetics industry is the invention protected by patent PL/EP 1971320 (Unilever N.V.), named Antiperspirant Compositions.
According to the description of the invention, it relates to the field of antiperspirant compositions and to methods of reducing perspiration. In particular, this invention is concerned with reducing perspiration on the surface of the human body by the use of water-soluble or water-dispersible thiomers. This is an innovative solution because, as indicated in the description, conventional antiperspirants are astringent metal salts, such as salts of aluminum and/or zirconium. Such materials can function extremely effectively; however, they can cause some problems, including the possibility of skin irritation. The solution was to replace metal salts with thiomers known in the current state of the art.
As we can see, the set of solutions in the cosmetics industry that could be subject to patent protection is large. It encompasses both innovative devices and tools, production methods, including packing processes, and finally – probably the most important – cosmetic compositions or – as in the case of natural cosmetics – a new application of substances found in nature.
Innovation in Poland
It turns out that patent protection is used primarily by large international companies and businesses from countries widely regarded as having highly innovative economies. The largest number of patent claims in the cosmetics industry – as in other industries – comes from the USA, Japan, Germany, France and Great Britain.
The Polish cosmetics market ranked sixth in Europe already in 2011, reaching the value of EUR 3.3 billion. However, Polish entrepreneurs take advantage of patent protection much less often than, say, their competitors on the common EU market, not to mention global companies. While companies such as L’Oreal, Unilever or Procter & Gamble have thousands of patent applications and patents granted in Poland, domestic entrepreneurs, including leaders in the Polish cosmetics industry, have incomparably fewer.
Meanwhile, according to the industry press, the Polish cosmetics industry is no longer competing only in price but also in the scale of investment in modern production lines and research programs, as well as in the innovativeness of marketed products. If this is so, then Polish entrepreneurs either forget about the possibility of obtaining patent protection or consider that the costs of such protection exceed the possible benefits.
Is patenting worth it?
Patent protection is limited only to the territory of the country in which the patent was granted and, as a general rule, in relation to a scope often narrowly established in the patent granting decision. The cost of such protection, especially if it is not limited to the Polish market, is substantial. In addition to official fees, the patent applicant should expect translation costs as well as the cost of remunerating qualified attorneys assisting in the preparation of patent documentation and providing representation in the registration procedure. Sometimes, instead of investing in patent protection, it may be more cost-effective to allocate resources to the development of an effective marketing strategy, advertising, design or brand promotion. This allows the entrepreneur to promote a new product and benefit from introducing it on the market ahead of the competition.
Nonetheless, taking into account the following facts, it is always worth considering the possibility of patent protection as part of a business strategy:
- Seemingly insignificant innovations including upgrades and improvements may also be patent protected;
- Commercialization of a new solution may consist not only in its application but also in obtaining remuneration for licenses granted to other entrepreneurs who wish to use the invention;
- Only patent protection gives one a genuine opportunity to benefit from innovativeness, without sharing it with others, and thus the fullest return on investment made in this respect.
Therefore, a full analysis of business and legal terms of economic activity may lead to the conclusion that patent protection is the optimal form of protection – despite the related costs.
Norbert Walasek, adwokat, Intellectual Property practice, Wardyński & Partners
