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

Patent office here I come

[Anonymous Coward]

The patent for the smell of teen spirit is going to make me rich once the 90's become fashionable again!

Stinking patents...

[n54]

...will hasten patent reforms ;)

Re:Stinking patents...

[PacoTaco]

There's this Chinese restaurant down the street from my house that should patent the smell of its dumpster for possible future military applications.

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

[lothar97]

I think he meant that there are trademarks of logos that involve colors and trademarks of jingles that involve sounds, not that a solitary color or sound itself can be trademarked. (the implication being that there would be trademarks that are partly smell)

Adding colors to logos and marks expands the amount of marks available. It expands the possible permutations available, and gives you a way to differentiate marks that might be considered similar. You cannot trademark a sound & words- that would be covered by copyright, which is a whole different kettle of fish.

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.

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.

Re:A few beefs

[hazem]

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

That's where branding becomes so important. Good companies work hard to build and protect their brands because customers will associate the brand with the product.

You could sell your knock-off product, but there will still be plenty of people who will pay more for the *real* Chanel. They *know* they are getting a good product that way.

For some reason, something in the human psyche reacts to branding. It's probably the basis for things like patriotism, racism, jingoism and esprit de corps.

In other news..

[euxneks]

McDonald's patents the smell of grease! (+1 Insightful)

Microsoft patents the smell of money! (+1 Funny)

Your local movie theatre patents the smell of urine! (+1 Informative)

SCO patents the smell of shit! (-1 redundant)

Bah... I won't quit my day job.. Wait! I don't have one!

Patents...bah, worry about Trademarks.

[example42]

The patenting of smells doesn't worry me so much since patents expire quickly (14 years IIRC). Trademarks on the other hand are perpetual and pose another intellectual property land mine. I'm sure we are all familiar with the International Olympic Committee being totally evil in "protecting" their trademarks. It would be most unfortunate to have Starbucks swing a huge legal hammer at small coffee vendors whose coffee smells similar.

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.

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.

please patent farts

[weighn]

so my colleagues can be issued with a cease and desist

Re:Smell trademark already in EU

[lothar97]

European law and US law obviously are different. According to the article you cited, there's an interesting tidbit. To register a trademark in the EU, you need a graphical representation. You have to show the mark, and describe it if need be (such as the case for the color orange for cell phones, you just describe the color). I'm not sure how you graphically represent a smell. TFA mentions describing "rose scent for tyres [UK]," but rejects Chanel No. 5, since although they did describe the general smell and its ingredients, you could not get a full idea of the smell.

IP, the only thing left for the US

[nolife]

Considering the US only produces a small fraction of the physical goods that it used to, the only thing businesses and our economy can compete with for actual generation of money in the global economy is IP (copyright, tradmark, patents etc). I see it as a big gamble or some type of last ditch attempt to give the US some type of advantage over the rest of the world as the manufactoring of real products is all but gone and not coming back. Can the US actually create and secure more IP then the rest of the world and sustain itself from the money that might flow in with it? I see the IP laws following this trend and I assume it will get much worse in the power grab. As I see it, IP can only support a much smaller crowd or group of people then real property does as you do not a large support structure to create it and maintain it.

Oh, I don't know

[IBitOBear]

How can you patent "put it on my tab" (one click shopping) or the division of labor (anything "client server")?

How can you patent parts of the human genome?

Simple, someone with money makse a "persuasive green folding argument" that they should be allowed to...

Here's one

[Klowner]

I'll call it "Hobo Stink" and slap all those guys on street corners with IP infringement lawsuits, then I'll yank the bucket of change out of their hands and split, it'll rule. And I'll invest in cardboard signs before I start doing that too, oh and, money buckets.

The BS economy

[Saeger]

Does it seem to anybody else that fewer and fewer people are actually doing actual useful work these days (yay productivity-gain hoarding! not), and thus if you're not unemployed you're increasingly likely to be producing new kinds of bullshit for newly created bullshit markets?

Instead of trying to create yet another kind of BS "intellectual property" in the form of taste & smell patents, we should be reevaluating our fucked up socio-economics. Everybody wants to feel useful and justify their existence I guess... whether you're a bogus patent peddler, a dead-weight manager, a yoga instructor, or a herbal supplement phony.

--

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?
.

IP insanity at it's best

[Pecisk]

I'm not a economy specialist or the lawyer, but such things which shows tad all IP is going to the extremes - coorporations want to be everything owned by someone. I personally thing they won't succeed - but it will be along fight before some sanity shows up in this situation. Before that, I give myself a half a laugh, half a shiver about all that. It is scary as it is funny to see how they try to run for money - oh, yes, it is needed for living, but not so much. Oh, ok, whatever...tired from all this.

Trademarks....

[ImaLamer]

Trademarks on the other hand are perpetual

Wrong...

What is a trademark?

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. 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.

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. :)

Finally a working business plan

[SkippyTPE]

1. Patent the taste of chicken
2. Sue everyone (because we all know that everything tastes like chicken)
3. Profit!!!!!!!