We have previously discussed how some of us view the patent, trademark and copyright laws as running out of control in this country. Now, there is an interesting fight between the United States and India over a move by Colgate Palmolive to patent an ancient recipe for herbal toothpaste. The Indians say that the recipe has been used for hundreds, if not thousands, of years by Indians and would now be claimed as the property of the company.
The recipe including clove oil, camphor, black pepper and spearmint is used widely in India and could be the start of companies claiming ownership of Indian folk medicines.
Colgate was granted the patent in the U.S. in June and insists that the recipe is a groundbreaking “red herbal dentifrice.” It is likely to argue that the addition of red iron oxide distinguishes its product from the traditional recipe.
In the meantime, India is rushing to compile a website of all of its folk medicines to create a basis for challenging these patents. I am not sure that will be sufficient if the companies tweak the ingredients with the use of things like iron oxide.
Source: FoxOrlando
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The real question is this:
If Colgate Palmolive and its employees never existed, when would someone have first added red oxide to the “Traditional recipe.” If the answer is soon, the it probably shouldn’t have gotten a patent. If the answer is 10 years out or more, then the patent is worthy in a speeding-up-technology sense. If the answer is 5 years then the patent is marginal in a speeding up technology sense.
Speeding up technology is the only sense that really matters, economically speaking.
@Spadge: No, you cannot patent something already well known to the art or already published and in the public domain; if there is evidence this folk remedy was around 1000 years ago it is necessarily printed. So India (or Indians) would rightly recognize that the combination of ingredients forming the folk toothpaste was not a patentable item; nobody can claim exclusive rights over its use or production.
The only open question is whether iron oxide adds any new function or efficacy; the PTO is not supposed to be granting patents for aesthetic changes; you cannot argue that “red dye” is your invention, or companies will patent ten thousand different colors of toothpaste alone. Somebody would have owned the patent on “Blue” as the color of a car. An invention is supposed to do something new or differently in a non-obvious way; it can be argued that changing the appearance of just about anything is an obvious change for people skilled in the art of making that thing.
J. Brian Harris, Ph.D., P.E.
1, October 25, 2010 at 9:44 am
Were anyone to ask me, and no one has yet done that, as an aspect of my work as a Wisconsin Registered Professional Engineer, licensed to hold paramount the public safety while working only in areas of my professional competence, doing so without deception, about my view of “the privatization of the commons,” I would find it a violation of my license to deem privatization of the commons to be other than a catastrophically destructive crime against humanity, a crime far more dastardly and destructive than any statutory felony.
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Okay, I’m asking …. why would you find it to be “a crime far more dastardly and destructive than any statutory felony.”?
India should of patented/copyrited or whatever, it first. You snooze, you lose.
No, the original recipe is fundamentally the original recipe. Adding red oxide to the original recipe is fundamentally something else. Something else good? Something else bad? Something else indifferent? The market will tell us now that the corporation is going for it in earnest.
Sorry, professor, but this is hardly “the start of companies claiming ownership of Indian folk medicines.” This sort of thing has been going on for quite a while.
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Buddy Hinton 1, October 25, 2010 at 12:54 pm
… if someone wants to expend the money/time/risk to take down the patent on grounds of the minimal margin of invention, then they are welcome to do so (although why bother in view of point (i)).
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The flip side of the question, “Why bother to fight such a patent” is “why bother to try to patent something that is fundamentally a traditional recipe?” Why can’t Palmolive compete by saying, “we use top quality ingredients, with high levels of quality control, and deliver this product to you in a convenient form”? Why do they need to pay lawyers to try to patent something that is fundamentally not innovative?
The Indian government has been working on this issue for more than a decade, and has spent millions to prevent chunks of their culture from being “staked out” under the western “Intellectual Property” scheme. Here’s a nice summary article:
http://www.guardian.co.uk/world/2009/feb/22/india-protect-traditional-medicines
A big part of the current effort is to create a globally available encyclopedia of things like yoga poses/terms and ayurvedic medicines and ingredients, so that these are clearly established as “well known”.
If they have been allowed to claim a folk remedy as their invention . . .
It doesn’t sound like they have been allowed to do this. It sounds like their recipe became something other than the folk remedy when they added red oxide and that scope of patent coverage is only asserted to be limited to this (presumably) corporate-invented variant.
Even if red oxide is but a trivial variant on the traditional recipe, that means two things: (i) it will be an easy variant to avoid by sticking to the substantially-equally-good folk recipe; and (ii) if someone wants to expend the money/time/risk to take down the patent on grounds of the minimal margin of invention, then they are welcome to do so (although why bother in view of point (i)).
Maybe the red oxide is a much better addition than people realize and/or are willing to admit. The corporation now has an incentive (that is, exclusive rights) to market the holy living tar out of its red oxide variant. If it catches on, then it just goes to show that the variatin was more important than we realized here in the peanut gallery. If it doesn’t catch on, than the joke is on the corporation. In the metaphor or Professor Kitsch (sp?), the corporation has been allowed to stake a claim which they will now prospect for a rich vein of ore. The exclusive rights of the patent will cause the prospecting to proceed in a comprehensive and fast way, and it won’t take 100s more years to get red oxide added to the slowly evolving traditional recipe. In this way, patent rights are believed to make technology move faster than it otherwise would (even if the only advancement here is the realization here turns out to be that red oxide sucks).
@Buddy Hinton: I think it depends on the claims in the patent; which I do not know. If they have been allowed to claim a folk remedy as their invention, to me that is an indication of a patent system out of control or fraud on the part of Colgate. Patent investigators are supposed to stop that sort of crap, and it can have a chilling effect on companies earning money by exploiting the folk knowledge for profit.
For example, a friend of mine owns a restaurant and uses numerous traditional recipes. If because of incompetent PTO review somebody were allowed to patent them, and then use the patent to sue him, it seems to me it might cost him thousands just to defend himself against an obvious shakedown.
So:
Use the version without the red oxide and don’t worry about the patent.
Or: use the version with the red oxide and do worry about the patent.
I fail to see any sort of problem here, much less a patent system out of control.
Disclaimer: I am a patent lawyer amd have been for a long time now.
Were anyone to ask me, and no one has yet done that, as an aspect of my work as a Wisconsin Registered Professional Engineer, licensed to hold paramount the public safety while working only in areas of my professional competence, doing so without deception, about my view of “the privatization of the commons,” I would find it a violation of my license to deem privatization of the commons to be other than a catastrophically destructive crime against humanity, a crime far more dastardly and destructive than any statutory felony.
Bonnie- It will be o.k.- Colgate is adding red iron oxide (better known as “rust”) to it.
Who here is willing to brush his or her teeth with black pepper? I am not.
what AY said …
Best reaction … don’t buy the damn product!
Corporate Greed at its best…
I believe they would have to make a formal claim in the patent that the original recipe (sans iron oxide) has some benefit, and that patent claim could be individually challenged as prior art in the public domain, which should not be hard to prove if it truly is thousands of years old.
Patents that do not improve upon prior art are supposed to be dismissed, you can’t just wait for somebody else’s patent to expire, paint their invention a new color or add a feather to it and repatent it in your own name. You have to do something new, non-obvious, and it has to be considered new by a person “skilled in the art” of that discipline.
and if the patent filer (Colgate) failed to inform the patent investigator of knowledge they had that parts of their claim were in the public domain, my understanding from being an engineer working with attorneys on patents is that the filer can be held liable for something like fraud and damages.
So, if the Indian government can afford to pursue it perhaps they can recover some kind of damages from Colgate for committing a fraud (if they did commit fraud, I haven’t read their patent claims).
“The ingredients date back to antiquity. They have been used by the common Indian man for thousands of years. So how can it possibly be patented?” Triguna asked.”
I guess we will see.
That explains a lot, kinda like the guy who wrote a book which explained that we learn all we need to know in the sandbox in Kindergarten.
A modern scholar and educator knows his toothpaste:
“Noam Chomsky: One of the most important comments on deceit, I think, was made by Adam Smith. He pointed out that a major goal of business is to deceive and oppress the public.
And one of the striking features of the modern period is the institutionalization of that process, so that we now have huge industries deceiving the public — and they’re very conscious about it, the public relations industry. Interestingly, this developed in the freest countries—in Britain and the US—roughly around time of WWI, when it was recognized that enough freedom had been won that people could no longer be controlled by force. So modes of deception and manipulation had to be developed in order to keep them under control.
And by now these are huge industries. They not only dominate marketing of commodities, but they also control the political system. As anyone who watches a US election knows, it’s marketing. It’s the same techniques that are used to market toothpaste.” (Noam Chomsky)