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.
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.
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.
Securing all the applicable intellectual property for perfumes requires creativity and skill. Consulting a patent agent or patent attorney is highly advisable.
- perfume image by Alison Bowden from Fotolia.com