Editor's note: The "Words from Wiechers" series considers the many lessons the cosmetics R&D industry can learn from the late Johann Wiechers, Ph.D. He was a critical thinker, adviser, colleague and leader in the industry until his unexpected passing. Presenting Wiechers's insights is IFSCC Education Chair Anthony J. O'Lenick, Jr.
This month, we review chapter 26, "A 'License to Kill'" in Wiechers's Memories of a Cosmetically Disturbed Mind. Here, he takes on the potential problems inherent in our patent system. He begins on a positive note, encouraging us to “continue to do creative research and patent our findings for the benefit of all, ourselves, our competition and foremost, our customers.”
This, after all, is the definition of the quid pro quo inherent in our patent system. In return for fully disclosing the technology covered in a patent, the inventor gets 20 years of monopoly in return for dedication of the technology to the world after the monopoly expires.
Wiechers writes: “What is the reason for filing a patent? In return for twenty years of (commercial) exclusivity on a technology, a process, a chemical or whatever else is patented, the inventor shares his or her findings with the scientific community at large. Instead of keeping the invention to him or herself, which would allow only a few people to gain and therefore only a little money to be gained from the benefits of his or her creative thinking, the inventor publishes the innovation in return for twenty years of exclusivity in a much wider community, leading to increased profits.
"But at the same time, his or her competition can learn the latest and find ways around the existing patent to use this to his or her own advantage. In this way, everybody wins; sharing creative steps with colleagues in the industry leads to new creativity.”
He then proceeds to point out, however, that: "Many patents nowadays are no longer filed to share our inventiveness with the community at large in exchange for twenty years of exclusivity and increased profits; but just to prevent others from entering a market without even an intention from the inventor to do so him or herself.
"Although these patents may be commercially very viable, scientists effectively chose the simple route [rather than what is outlined in the patent] and go for something else, which in my definition of creativity [equates] to hampering the progress of cosmetic science."
'The benefit of being in early is the potential for broad claims. Just because [one] has been granted, though, does not mean [it] will be upheld in court.'
While accurate, it is difficult to control a legal process of patentability based upon the intention of the patent holder. The patent system in the U.S. was established in our constitution to promote the arts and useful science, not as a system of education. However, in order to be valid, the patent must be enabled—i.e., to have the details contained therein that allow for the duplication of the invention.
The application patents that emerge as truly new technologies are developed also present a challenge. Wiechers offers the following observation:
“At the 2004 IFSCC Congress in Orlando, we saw gene chips entering the cosmetic science arena. Gene chips allow the investigator to identify which genes are switched on by a specific chemical and because the number of human genes in the human genome is relatively small, only some 21,000, you can quickly identify what type of activity a new molecule, if any, might have.
"If your active ingredient accidentally works on one of the genes patented by Venter and Haseltine, I think you know what will happen. Gene chips are a beautiful technique but it may take [until] the gene patents have elapsed before we [can reap] the benefits. As long as Haseltine’s gene patents are valid, they [hold] a 'license to kill.'
"I have to stress here that, as always, I am deliberately exaggerating to make my point. In reality, patents also have to provide evidence of the invention and unreasonable scopes of claims are not often accepted unless substantiated. With any new technology, there are potential difficulties with breadth of claim. It takes a few years for the patent offices to understand the technology and get a feel for reasonable scope of claim to be granted.
"Thus, the benefit of being in early is the potential for broad claims. Just because [one] has been granted, though, does not mean [it] will be upheld in court. In addition, selection patents allow creative scientists to go around existing broad patent claims. Therefore, let’s continue to do creative research and patent our findings for the benefit of all, ourselves, our competition and, foremost, our customers.”
Originally published in April 2005, this discussion is as timeless and important today as it was 14 years ago.