IP's Next Big Wave - Taste & Smell Patents

Magnavox writes "Futurist Thomas Frey has written an article about Monday's Nobel Prize in medicine opening the door for taste & smell patents. Dr. Richard Axel and Dr. Linda B. Buck won the prize for scientifically describing how odor-sensing proteins in the nose translate specific tastes and smells into information in the brain. Patenting smells in the past was limited to describing the chemical composition of the substance. Receptor patterning opens the door for a variety of new patenting possibilities... Perhaps more important will be the decision as to whether smells can be trademarked as symbols of the products or services they represent. Sounds and colors are commonly trademarked today because of the commercial impression they leave on consumers. Smells cannot be far behind. Now I'm wondering if we can patent the smell of money."

Prior Art

[ImaLamer]

Wouldn't everything that can be thought of already be covered under prior art?

God, nature, what have you, will already have all the prior art claims he/she/it wants.

From TFA:

Enter the October 4, 2004 announcement that two Americans were awarded the Nobel Prize in medicine for discovering how people can recognize and remember an estimated 10,000 smells, ranging from smelly garbage to expensive perfume.

The two researchers, Dr. Richard Axel and Linda B. Buck, won the prize for scientifically describing how odor-sensing proteins in the nose translate specific tastes and smells into information in the brain.

Their breakthrough stemmed from a 1991 discovery of a family of genes devoted to producing different odor-sensing proteins, called receptors, in the nose. Their work showed that people have a few hundred types of odor receptors, each of which can detect only a limited number of odors.

When a person sniffs cologne or fresh chocolate chip cookies, for example, a mix of different types of molecules flows over the receptors in the back of the nose. That activates an array of the receptors, but only those primed to respond to those particular molecules. The brain notes which receptors are activated, and interprets this pattern as the smell.

Besides... how can you patent my nose and its functions?

Coffee

[Anonymous Coward]

One of my friends that works for a large multinational food company told me that the nice "fresh coffee" smell you get when you open up a brand new jar of instant coffee is actually sprayed on at the last stage of the production process.

Seems like that particular signature would be a likely candiate for a trademark.

Re:A few beefs

[Lehk228]

trade secrets are only protected as long as you proteect them, if someone were to do a molecular analysis of chanel 5 and determine exactly what makes it smell the way it does they could easily release a new product indistinguishable from chanel 5, and sell it for $5/bottle.

Re:Patents are getting ridiculous

[CrackerJack9]

If you improve upon something that is already patented, you can apply for a new patent...its called patent law.

Trademarks....

[ImaLamer]

Trademarks on the other hand are perpetual

Wrong...

What is a trademark? [washington.edu]

A trademark is an identification of goods or services which may be a word, phrase, acronym, logo, or other symbol. Manufacturers use trademarks to distinguish their products from others. A trademark does not give exclusive rights over the product to its owner; it merely prevents others from using the mark in commerce.

In the U.S., a trademark can be registered with the U.S. Patent and Trademark Office for 10 years and 3 months, and can be renewed every ten years.

Trademarks do expire and sometimes companies forget to reapply which causes plenty of trouble all around or they steal peoples work [guerrillanews.com]. It is far from perpetual.

Re:A few beefs (corrected)

[Anonymous Coward]

For someone who holds themself out to be an IP attorney, I'm frightened at how little he understands of intellectual property.

First, while a patent does not technically protect the idea itself, it does prevent others from applying the ideas in the patent and using the applied ideas to make money. The line is a fuzzy, at best.

Next, color by itself can NEVER serve as a trademark. The "Qualitex" case is as close as any court in the US has ever come to saying that color, without more, can serve as a trade identifier.

Color only serves to distinguish source, origin, or sponsorship in combonation with other trade dress features - such as container configuration. For example, UPS cannot, and will never be able to, trademark the color brown despite their significant investment in the commercials "What can BROWN do for you?" What they can, and do, trademark, is the color brown in combonation with the distinguishably boxy shape of their trucks. Big difference.

The "Owens Corning" (think pink fiberglass and the Pink Panther) case is often cited for the proposition that color alone can serve as a trade identifier. While it is true the court said OC could have exclusive rights to the color pink in their fiberglass, it never said OC had the exclusive right to the color pink.

Similarly, Cutty Sark whiskey attempted to trademark a gold color by exhaustively advertising in magazines and on billboards the color of their whiskey. Nowhere was the name Cutty Sark used, just the color. They gave up, and its unlikely that despite any investment of time and money, that secondary meaning would develop in the color alone.

The only cases where color is protected by the courts are in cases dealing with pills. While these courts do stand up to protect color, in combonation with pill shape, they do so in contrast to other cases rejecting exclusive rights in colors. But the strong public policy in having readily identifiable and distinguishable medications overrides the traditional proscriptions in the Lanham Act against trademarks of pure color alone.

Finally, it is unlikely design patents can be extended to smells. Design patents protect new, nonobvious ornamental designs applied to useful things. Application requires a drawing of the design, and protection is narrowly limited to that design. Therefore, this patent set provides protection for visual elements of things. Even if a change in the law were permitted - how does one draw a scent? Submit a sample of a scent? How does one check to see if a scent infringes? Everything, theoretically has a smell, should every item manufacturered have a scent patent? And to what useful article is the design element applied? The purposes underlying the institution of design patents simply do not hold for scents.

In fact, scents do not even qualify for the lower threshold of trade identity protection. Every aroma case tried in court has failed on its merits. Aroma is simply descriptive of a product's ingredients, and absent secondary meaning (no example of which has yet been demonstrated); accordingly, no rights can vest in a scent.

Scents and aromas are more appropriately relegated to trade secret protection, which is the only IP protection capable enough to protect a product's unique combonation of ingredients that generate a certain scent.

Re:Smell trademark already in EU

[geeklawyer]

(I'm also an IP lawyer)
There aren't many smell TM's in Europe either but the CTM legislation specifically provides for smells.
OHIM treats a verbal description of a smell as an adequate graphical representation for the purposes of trademark registration so long as it is decriptive and unambiguous. If it were litigated on litigants would wheel out all those perfumiers as expert witnesses who, like wine snobs, would presumably talk about "nosey acidic wood" or somesuch.

Smell registrations are registrable in the US also however: I think there was a case called "Clark" (sorry I havent got the citation) which talked of the smell of a bloom.
Chromatograhic report are thought not to be adequate as they dont unambiguously or immediately describe it.