While nutritional supplement patents are not unheard of, it is still somewhat unusual for nutritional supplement makers to apply for patents on their formulations. Instead, supplement makers typically rely on trade secret protection, creating proprietary blends of ingredients and keeping the formula secret. Unlike makers of prescription drugs, supplement manufacturers do not have to endure a review process where their formulations would be disclosed to the world. This makes keeping the “secret sauce” secret a viable means of intellectual property protection. Relying on trade secret protection also means supplement makers can, if they protect their formulas (think the formula for Coca-Cola), maintain perpetual exclusivity to their proprietary blends.
On the other hand, applying for a patent means disclosing your formula to the world, and patent protection generally runs out twenty years after the application is filed (and the application must be filed within the first year of the first sale or public disclosure). So you get a monopoly on your formula for about a 20 year period, but after that anyone can make it and sell it.
Despite this drawback, for some patenting supplement formulations can be a viable intellectual property protection strategy. Take Bausch & Lomb, for example. On Dec. 9, 2003, the US Patent and Trademark Office issued patent no. 6,660,297 entitled “Nutritional Supplement to Treat Macular Degeneration.” The supplement is basically a combination of antioxidants including Vitamins C, E, A, Zinc, Copper, Lutein, and several other ingredients. In the patented combination, B&L claims the supplement strengthens retinal health.
Armed with its patent, this article in the Rochester, NY Democrat & Chronicle
reports that B&L has begun enforcing it against infringers, including the makers of allegedly infringing supplements sold in Walgreens, Medicine Shoppe and CVS stores.
Of course, not every supplement maker has the economic muscle of Bausch & Lomb. The company has hundreds of patents and the resources to prosecute infringers. This is important since one of the most valuable aspects of a patent is the ability to keep others from making and selling your invention.
Out of curiousity, I did a few searches at the USPTO site for patents and patent applications with the words “nutritional supplement” in the title. Since 1976, there have been 58 patents issued with those terms in their titles. Meanwhile, there are 55 patents currently pending all of which were filed in just the last five years that include the terms “nutritional supplement.”
While this is certainly far from scientific, my searching suggests that supplement makers are increasingly looking to patents as a way to protect their formulas.
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
While I understand that Bausch and Lomb were able to remove the infringing products from the market, is it possible the same infringers can market similar product without making any claims?
Or can they sell similar products for a different claim?
Question? Do contract manufacturers legally have to maintain the secret ingredients in one’s nutritional supplement? Most companies don’t manufacture their own products but outsource that to a contract manufacturer. Are those companies obligated by law to keep your formula secret? Are they liable if they leak it to other companies?