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."

Comments

A few beefs

[lothar97]

I'm an IP attorney, and I have a few beefs with this article.

1. In one sentence Frey refers to trademarks of smells, and then in the next sentence wonders if smell patents can be close behind. For the last f'ing time, patents != trademarks.

Patent: protects an invention (but not an idea itself)
Trademark: identifies a source of goods or services (usually through a name or logo)

Patents and trademark are quite different, so please stop confusing them- especially people writing scholarly articles.

2. There are not "many" color or sound trademarks. There are very few sound trademarks- the NBC chime comes to mind, and Harley Davidson recently lost their attempt to trademark the Harley engine sound. As for colors, you can get your trademark in a specific color (to distinguish it from similar marks, but there are very few color only trademarks. The only one I know of is Orange, which gets the color orange for cell phones. Using colors for trademarks is more of a European thing, as the US only within the last year began accepting color drawings in trademark applications.

3. I think Frey is going too far. Sure patent attorneys like to stretch the limits of the law for their clients (like all attorneys), but there needs to be something codified in the law to allow patenting of a smell. Currently a smell by itself does not reach the minimum definition of patentable subject matter. To have something that is patentable, you need a physical invention that does something useful, and I don't see how a smell in itself provides this usefulness. I can see smell as part of an invention, such as a fire alarm system or adding smells to movies. Throwing out wild hypotheticals, I guess you could patent a smell that makes the person inhaling it do a specific reaction- but then that raises ethical questions that the patent office might use as a rejection.

There is something called a design patent, which protects the ornamental features of an invention (like the propeller people put on their trailer hitches). With a design patent, you do not have claim any useful features, you just show drawings. This could logically be extended to smells, but you need to have a change in the laws.

Re:A few beefs

[JaredOfEuropa]

To have something that is patentable, you need a physical invention that does something useful, and I don't see how a smell in itself provides this usefulness.

How about perfumes? I am sure Chanel would like to patent their Nr. 5 smell... after all this is the only useful feature you get when you buy an expensive bottle of the stuff. Currently the smell itself is not protected; and you can buy very similar copycat perfumes, the only thing they are not allowed to do is sell it under the name of Chanel.

Then again, manufacturers should be able to protect designer smells like perfumes. Not sure whether patents are the way to do this... and we don't want any 'one click'-like patents. Else I'd patent the smell of manure as a way to keep unwanted visitors off my land... and then give every farmer the choice of paying me royalties, or invent a manure that does not smell like mine.

Re:A few beefs

[lspd]

That said, it's taken 100 years for colors to be brought into the international trademark framework, and very few sounds. I doubt smells will be included in our lifetime.

But the changes are very recent, and there's every indication that "IP Rights" will continue to be rapidly expanded in the near future.

From Ladas & Parry LLP an IP law firm.

However, until recently, United States courts were still divided over the issue of single color marks.[8] Finally, on March 28, 1995 the United States Supreme Court resolved unanimously that, "sometimes, a color will meet ordinary legal trademark requirements. And, when it does so, no special rule prevents color alone from serving as a trademark."[9] However, the Court held implicitly that single colors may not be inherently distinctive, but like descriptive marks or words, may only be protected when they have acquired a secondary meaning through use. The Court also found that the green-gold color at issue served no function other than as an identifier and the Court dismissed the "color depletion" problem raised by the plaintiffs.

...

Marks consisting of scents are the most problematic. In addition to the practical difficulties of describing such marks sufficiently to determine where conflicts may exist, there is little legislation or jurisprudence on the subject. A scent mark was first recognized in 1990 in the United States, where a scent, described as a high impact, fresh, floral fragrance reminiscent of plumeria blossoms, applied to sewing thread, was deemed a registrable trademark.

So it seems that we already have smells incorporated into trademarks in the US. The original assertion that a precise system of describing smell may cause the doors to swing wide open.

Re:A few beefs

[QuantumG]

Patent: protects an invention (but not an idea itself)

What does that mean exactly? Why use a term that conveys no meaning like that unless you're deliberately trying to mislead people. Call a spade a spade man.

Patent: restricts what others can do with an invention (which can be an idea, cause that's all software is and it's patentable)

Slimey lawyer scum.

It's an interesting idea

[jfengel]

The most objectionable software patents are so dumb because they seem to fail the "obviousness" test. To be patented, a thing (it used to be a device) had to be useful, novel, and non-obvious. Online shopping carts and one-click shopping strike everybody here as obvious; the ones with the patent aren't the first ones with the idea but merely the first ones with the money to put together a patent.

But not everybody can create a new smell. Well, given the hygiene and dietary standards famous to Slashdotters I'm sure that new smells are created all the time, but I assure you nobody wants those smells. To create a new perfume requires a highly expert skill set. The same applies to food; blending the right chocolate, wine, or coffee is a job for an expert.

I assume that means coming up with a reproduceable smell. I can't imagine you could walk in with something you threw together and say, "I patent this! Nobody else can have it!" without at least being able to describe what it is and how you got it.

I don't know how they're going to judge "distance". In copyrights I imagine that they have some sort of measurement for when a new work is derivative of an old one. I can't pick up a copy of John Grisham's The Jury and change a few letters and copyright it. Similarly I hope nobody would be able to walk in with "This is just like Chanel No. 5 except I added some vanilla extract".

Actually, that would smell kind of nice. But there are getting to be some potentially stupid gray areas, where things are similar, but it's hard to quantify how similar because smells and tastes are a lot harder to examine than inventions and books.

Dogs can tell the difference

[Doomsdaisy]

Since dogs have a sense of smell that is somewhere between 10k and 100k times better than our own, could you define your smell as significantly different than a pattented or trademarked smell based upon a dog's ability to tell the difference? I mean, couldn't you train a dog to recognize the difference between what us humans would regard as identical smells?

This raises the question - do our own limited senses define what is and isn't patent infringement, or is the truth more concrete?
.

A colour trademark everyone will know

[MachDelta]

There are not "many" color or sound trademarks.
...but there are very few color only trademarks. The only one I know of is Orange, which gets the color orange for cell phones.

I know of a colour trademark that EVERYONE will recognize: UPS brown. Yup, it's a trademark. The colour is actually called "Pullman Brown", named after the classy Pullman railroad cars way back in the day. It's been a trademark of UPS for such a long time, most people don't even conciously realize the association between the colour and the company. But its there, and thats why it's a trademark.

As for WHY they picked the colour... two reasons. One, they thought it looked "professional" and classy (like the railcars) while still being unique. This was in contrast to the very first UPS vehicles which were all painted different and often bright colours (red, yellow, etc).
Two, brown hides dirt very well, giving the impression of always being clean. Infact, the company itself borders on the obsessive with presenting a 'clean image'. UPS trucks are washed daily (!) so they always look nice. Any time a truck is damaged, the very first thing they do with it is hide the truck. Seriously, its company policy that obviously damaged/scratched vehicles are not allowed to sit in sight of the public. The company also has VERY strict rules on the apperance of its employees too (the ones the public sees anyways).

Anyways... yeah, just wanted to share that little nugget of information. People don't realize just how much time, money, and effort some companies (like UPS) put into image. The objective being, of course, that people DON'T realize the amount of work it takes... and instead simply create a network of positive associations - like colours and apperances - with the company entity.

It really is amazing what you don't know you know. :)