which were not known to perfumers or flavorists prior to their
introduction into the market, have offered a unique note or created a novel solution that has benefitted the industry as a whole.
Patenting these wonderful creations affords protection to the
companies that, no doubt, synthesized hundreds if not thousands
of molecules, making incremental changes to a chemical structure, before coming across that one molecule that stands out
and meets the criteria that a perfumer or flavorist is looking for.
Unfortunately, there are few “eureka” moments in research,
and success comes from a combination of perspiration and persistence, with a small amount of inspiration thrown in. The same
is true from a process innovation perspective. While there are
many ways to make a molecule, often by making incremental
changes to a process, or by adapting a reaction that is known to
work well under one set of physical and chemical conditions and
then optimizing by even more incremental changes, innovators
often end up at something that is unique and seems far away
from the initial idea. For example, imagine that a company patents a unique method to synthesize a common molecule such as
L-carvone, rose oxide or sulfurol. While that molecule may not
be novel, the method used in its synthesis is completely different from the traditional, previously reported methods and offers
advantages not only to the producer but also to the customer.
Are these inventions any less valuable than creating a completely
new molecule? Not in my opinion.
Should these inventions be legally protected? Sometimes this
decision comes down to the ability to enforce legal protection.
If a new molecule is invented, a composition of matter patent
can be filed, which is relatively cut-and-dry in terms of ability
to enforce: if another company sells or uses the molecule, it
is fairly easy to identify this and defend the patent. If what is
invented is a process for making a molecule, then the ease of
defending the patent and making the patent enforceable comes
down to the ability to trace a particular impurity or other chemical signature of the process, but again this can be identified and
How Can Innovation Be Protected?
So it seems that novel molecules, applications and processes
should be protected and can be. The question is how and where
the industry can protect them. The patent laws in various countries and regions are not uniform, and so the level of protection
being offered differs. For example, it is often difficult to defend
patents granted in developing economies, which lack decades of
patent case law involving competing rights of domestic and foreign companies. There is a tendency in those economies to allow
miniscule incrementalism, or even blatant copying of a product or
process, if it favors the domestic company based in one of these
countries. Should the original inventor therefore only protect
their invention in the regions in which the legal system defends
innovation? To do this may involve a legal challenge, not against
the manufacturer but against the distribution channel into the
country, or the user of the material, who is often also a customer
of the original innovator, rather than a direct competitor. This,
then, causes a potential public relations problem, as by causing
disruption in the market the litigating company, which is only
looking to defend its invention and investment, could be perceived as being negative and preventing competition. This may
prevent the innovating company from attempting to defend its
patent, and ultimately from financing future innovation.
Another important consideration is how a western company
determines if it is potentially infringing a patent by purchasing
from a supplier, or its affiliate, that is copying protected technology? It is common practice for raw material suppliers to buy
and sell from and to one other. How do companies know if there
is an agreement to supply material? Only by communicating to
the market the area of innovation, and that this is protected,
can ethical companies make the decision to focus their supply
chain only with those companies that are truly innovating and
protecting their innovation, and not with those companies that
are simply copying protected technology.
The Risk of Doing Nothing
This is where I believe the industry must be more holistic in
its view and have a longer term approach. Allowing companies
to copy the products and processes of those that have invested
heavily in innovation may give a short term advantage by allowing cheaper materials to be accessible, but the overall effect will
be simply to stifle innovation in the long term, which benefits
no one. The users of materials must take a more moral stance as
a whole, and protect those companies that take risks and innovate by showing loyalty to those companies that invest and not
defecting to the cheaper alternative that has been developed by
blatantly copying a process or product.
Address correspondence to Steve Pringle, Renessenz;
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