Why Can't I Patent a Fragrance ?

By Shelly Morgan

35 U.S.C. 101 states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." While this does not include perfumes, all hope is not lost.

Applying the law

Perfumes are not patentable under 35 U.S.C. 101 because they are not a "new and useful process, machine, manufacture, or composition of matter". However, the composition of the perfume (that is, the list of ingredients used to make a particular fragrance) is patentable. The patent classification system has an entire class (Class 512) devoted to perfume compositions.

Important considerations

Most perfumers intentionally do not patent their fragrances because getting a patent requires disclosing everything about the invention. Few perfumers would want to disclose how to make their special perfumes.

Design patent

If the perfumer does not want to patent his fragrance, he may be interested in applying for a design patent for the perfume bottle. Design patents protect unique ornamental designs. For example, the shape of the old glass Coca Cola bottles were protected by a design patent.

Other types of protection

Although a perfumer might be loath to seek patent protections, other types of intellectual property protection are available. For example, the perfume bottle and the name of the scent can be trademarked if they have not been used before.

Warning

Securing all the applicable intellectual property for perfumes requires creativity and skill. Consulting a patent agent or patent attorney is highly advisable.

About the Author

Shelly Morgan has been writing and editing for over 25 years for various medical and scientific publications. Although she began her professional career in pharmacological research, Morgan turned to patent law where she specialized in prosecuting patents for medical devices. She also writes about renal disease and hypertension for several nonprofits aimed at educating and supporting kidney patients.