7 things skincare formulators must know about patents

Apart from being an Intellectual Property expert, I am also a self-diagnosed skincare addict. My passion for skincare got to a whole new level once I discovered that you can DIY cosmetics. After many failed attempts at preserving clay masks during lockdown (give it a try, I dare you) I finally found Formula Botanica. I graduated with my Organic Skincare Formulation diploma in April 2022 and really upped my skincare game. 

Starting my formulation journey I learnt so much about different legal requirements which I had no idea about before. It made me realise that this is how most formulators must feel when the world of patents comes knocking at their door and that there is so much I wish I could share with this lovely community. 

I sat down with Dr Philip Lenden, a UK & European Patent Attorney and founder of Simplify IP, who specialises in chemistry to learn more about the intricacies of patents in the field of skincare. Here are the seven key takeaways you should be aware of, straight from the experts:

IF YOU INVENT A NEW FORMULA, YOU CAN PATENT IT

Patents are a form of intellectual property (IP) protection that gives inventors the exclusive right to make, use, and sell their invention for a certain period of time. This means that if you develop a new and unique ingredient or formulation, you can apply for a patent to protect it from being used by others. However, you will have to disclose the details about your formulation to allow others to understand it enough to replicate it (so that they know when they might be infringing on your patent!)

Whether to patent a skincare formulation or keep it confidential is a decision that everyone must make based on their specific circumstances and goals. One advantage of patenting a skincare formulation is that it provides legal protection against other people/parties infringing on your patent. Once a patent is granted, the patent holder has the exclusive right to make, use, and sell the invention for a certain time (in general, 20 years). On the other hand, keeping a skincare formulation confidential can prevent competitors from learning about the specific ingredients and proportions used in the formulation. This can give a formulator a competitive edge, especially if the formulation is difficult or expensive to replicate.

BE STRATEGIC ABOUT DISCLOSING YOUR FORMULA DETAILS

In some cases, a hybrid strategy of patents combined with trade secrets may be the best option. For example, a formulator could file for a patent on a new active ingredient or delivery system, while keeping the specific formulation and usage instructions confidential. Ultimately, the decision of whether to patent a skincare formulation or keep it confidential will depend on the formulator’s business goals, resources, and the specific circumstances surrounding their invention.

PATENTS CAN BE INSPIRATION FOR YOUR OWN PRODUCTS

Most compositions are easy to reverse-engineer. As soon as you look at a product’s full ingredients list you can decipher its contents. Formulators are legally required to list their ingredients from the highest % used to the lowest, with the caveat that once you get to the 1% ingredients and below, you can arrange them in a random manner. Some ingredients (e.g. Phenoxyethanol) are usually used at 1% therefore you will know that all ingredients that follow are used at less than 1% of the overall formula. However, the ingredients research will only get you as far as figuring out the ratios, without the knowledge of the formulating process. Getting a hang of searching in patent databases opens up a whole new dimension for your work as a skincare formulator. 

I was so impressed by the MONO Skincare products, I could not wait to try to formulate similar products for one of my DIY projects. If you have not heard of MONO, you must check them out. They invented an entirely water-free, sustainable range of products delivered in an organic skincare tablet which you can simply disperse in tap water at home. How amazing is that!? I was glad to see they have actually applied for a patent for their formula (you can view it here). I read it top to bottom, to try to replicate their tablet with my own ingredients. Whilst my experiment in pressing inulin, sugar and maltodextrin together into a neat tablet ended up a disaster in my kitchen, I remain a massive fan of the brand. It also gave me further ideas for my own products! Searching in patent databases might feel overwhelming but I promise you, it’s worth it.

INGREDIENT AVAILABLE ≠ INGREDIENT LEGALLY FREE  TO USE

I spent 3 years perfecting two formulas I am now personally using on a daily basis and which I cannot live without. I tested hundreds of ingredients and dozens of suppliers. I finally realised that there is one particular ingredient that really makes that formula. I purchase it from one of the well-known suppliers of natural skincare ingredients. To my surprise, I found an active patent covering a pretty broad application of this ingredient. Thankfully, the company let it lapse in the UK so I can use it in products I sell locally without worrying about that particular patent but I have to be careful elsewhere. 

This comes back to the basic point of doing your research before you release a product. It’s not easy, it’s not cheap but it has to be done, similarly, as you must test your products for stability and get them safety assessed.

PATENTS ARE NOT LIKE DIAMONDS, THEY ARE NOT FOREVER

Patents have a limited lifespan, typically lasting 20 years from the date of filing. After the patent expires, the invention becomes part of the public domain and can be freely used by anyone. Skincare formulators should be aware of when their patents will expire and plan accordingly. 

Take as an example the absolute groundbreaking Skinceuticals Vit. C + Ferulic Acid serum. Vitamin C is notoriously difficult to stabilise and Skinceuticals have devised a novel way of stabilising it with ferulic acid. This was such a groundbreaking technology that decided to patent it (rightly so!), you can view the entire patent text here. With their patent being filed in 2005 they are looking at only 2 more years of exclusivity of this formula. This means we will see some new products launching around that time which will likely have a lower price point than £150 for 30ml of product. Having a monopoly over the formula for 20 years allowed Skinceuticals to set their price point high enough to recuperate the costs of Research & Development related to inventing this formula.

PATENTS COST A LOT BUT INFRINGEMENT COSTS A LOT MORE

Applying for a patent can be a costly and time-consuming process. The whole process can take several years and cost tens of thousands of pounds, and you need to repeat it in every country where you wish to gain exclusivity for your invention.  

If you were to be found guilty of infringing on someone else’s patent, you can be required to pay damages. Based on data from Lex Machina the average damages in a patent infringement lawsuit are between a few million dollars to even $300 million. To prosecute such a case would cost anywhere between $2.5 million to well over $10 million. These numbers vary by industry but this a pretty good indication that spending money on research before you launch a product will be less pricey than the courts doing that research for you after the fact.

Now, a special note for DIY skincare formulators. Would using someone’s patent to replicate a formula be considered an infringement? No, as long as you do it in the privacy of your home. This is how innovation works. How about if you filmed it and published it? That’s a topic for an entirely new post!

PATENTS ARE JUST ONE PIECE OF A PUZZLE IN THE IP GAME

There are several different types of Intellectual Property Rights that skincare formulators should be aware of, to best protect their product. Patents protect the functional aspects of an invention such as formulation, manufacturing process etc. Registered designs can be used to protect the ornamental design of your packaging. 

However, one of the most important Intellectual Property rights are trade marks. Customers are buying into your brand and your product’s quality. It’s your reputation and trade marks are legal rights that can protect it. Getting your trade mark registered is not enough though. You also need to perform searches to make sure there are no identical or similar brands already trading in the same space which toes you would be treading on (that’s my gentle way of saying: “get sued by”). 

In conclusion, patents play an important role in the skincare industry. They can provide a valuable tool to safeguard ideas and inventions as well as prevent others from profiting from your hard work without permission. Navigating their complexities can be a challenge so please reach out and book a free IP Strategy call to discuss any questions you may have.