Nutricosmetics — the coming together of the nutrition and cosmetic markets — is based on the premise of ‘beauty from within’. Ingestible natural beauty supplements are being used to complement topical formulations in a bid to deliver beauty and healthy-aging benefits with a particular emphasis on the integumentary system — including the skin, hair and nails. The benefits are far beyond what you’d obtain from eating normal foods or applying topical products.
Topical vs nutricosmetic
As an example, consider topical skin products. These aim to improve the appearance of your skin, but are only applied to dead surface layers. In addition, many topical products that contain collagen are unable to reach the dermis to increase levels of skin collagen. This is because the active ingredients have a large molecular size and can’t penetrate the skin’s surface (epidermis), which acts as a protective barrier. However, ingested products are able to reach the dermis via the blood vessels, nourishing and rejuvenating the skin from the inside.
The nutricosmetic market is being driven by a growing holistic approach to self-care, along with a general preference for natural, safe and effective beauty solutions. Consumers are seeking clean labels with recognisable ingredients, rather than chemical formulae.
Like many others in this competitive marketplace, you might be seeking to protect your innovative products with patents. There are some nuances to the application process specific to nutricosmetics — here’s a perfect case in point, which led me to pick out three ‘top tips’ to consider when preparing a patent application for a nutricosmetic product.
Time capsules and the plausibility test
The ‘Strength Within’ food supplement tablets from Dove Spa have been clinically-proven to reduce lines and wrinkles. Each tablet contains a patented formula which includes soy-bean derived isoflavones and lycopene. Isoflavones are a class of phytoestrogens — plant-derived compounds with estrogenic activity that can alleviate hormone-dependent physiological disorders such as skin aging in post-menopausal women. Lycopene is an antioxidant in the carotenoid family. It’s a pigment that gives red and pink fruits such as tomatoes and pink grapefruit their characteristic colour. Lycopene provides protection from sunburn and the skin-aging effect of the sun’s UV rays.
The tablets are protected by European Patent No. EP2004160, the prosecution of which is a useful example of how the EPO implements its ‘plausibility’ test.
Original claim 1 in the International (PCT) application generally recited a composition which has been adapted for oral consumption and is capable of providing an anti-aging effect in the skin. This composition comprises: (i) a PPAR ligand; (ii) an oestrogen receptor binding agent; (iii) an agent that’s involved in the post-translational modification of collagen; and (iv) a carotenoid.
The EPO considered that the application didn‘t contain any data which made it plausible that the tested compounds acted via the functional definitions within the claims. Unilever N.V. filed supplementary scientific literature and supporting data in order to demonstrate that the addition of docosahexaenoic acid (DHA) (i.e. a PPAR ligand), to a composition of lycopene (i.e. a carotenoid), vitamin C (i.e. an agent involved in the post-translational modification of collagen) and genistein (i.e. an oestrogen-receptor binding agent) provides a synergistic effect in the production of pro-collagen 1.
The data showed a synergistic effect of 0.001 μM lycopene, 0.001 μM vitamin C, 0.01 μM genistein and 10 μM DHA in the production of pro-collagen 1.
Despite this data, the EPO maintained that is wasn’t credible that the alleged synergy could be extrapolated to all claimed combinations — and furthermore that the synergy couldn’t be deduced from the application as filed. Consequently, the EPO found that the problem formulated by Unilever N.V. hadn’t been credibly solved over the whole breadth of the claims.
The patent was finally granted after claim 1 was limited to specific ranges of each of the compounds, which the EPO agreed credibly solved the problem.
Three top tips
With this important case in mind, here are my three top tips to consider when looking to patent a nutricosmetic product.
1. Strike a balance between date and data
As with any therapeutic compound, when filing a patent application directed to a nutricosmetic compound, a balance must be struck between obtaining the earliest priority date for an application and having enough experimental data to prove the claimed therapeutic effect. You want to make sure that your application is filed early enough to be considered inventive while allowing enough time to put together sufficient supporting information. The European Patent Office (EPO) assesses the presence of an inventive step at the effective date on the basis of the information provided together with the common general knowledge available to the skilled person assessing.
2. You can't simply speculate
While the technical effect of your nutricosmetic product can’t only be “inherently likely”, the EPO doesn’t actually require the application to contain “absolute proof” that the technical effect has been achieved. Instead, the test is whether the disclosure within the application makes it “plausible” that the invention solves the problem it’s purported to solve.
3. Disclose problem-solving credentials early
You can’t rely on supplementary post-published evidence as the sole basis to establish that a particular problem is solved by your nutricosmetic. It can only be used to back-up the teaching derivable from the application. Post-published evidence is only taken into account if the problem-solving credentials are already credible from the disclosure.