SCIENTIFIC DATA IN COSMETIC PATENT PROGRAM 77 chemical analysis of the results and then (if the results are the desired ones) place them in proper form, that is in affidavits. The original Hass and Susie case dealt with homologous compounds, but the doctrine has been extended by the Patent Office to isomers, including stereoisomers, and the Patent Office Examiners are continually endeavoring to extend the doctrine. Indeed, in one case the Patent Office Examiner ex- tended the doctrine to apply to dyestuffs having an additional C1 over the old compound (2). It was shown that the introduction of this Cl resulted in certain improved properties and hence the Patent Office Ap- peals Board rethsed to go along with the application of the Hass and Susie doctrine to this situation. This doctrine is, however, applied even though beneficial properties of the old compound were not actually known when the new compounds were made. The test which you have to meet is to show that your new com- pound has unusual and unexpected properties over those in fact possessed by the old compound whether or not these properties were known (3). Nevertheless, the Appeals Board of the Patent Office overruled the Patent Office Examiner in another case and held that the Hass and Susie rule did not apply where the claims covered the zinc, copper, and iron soaps of tetra-isobutyl phenol sulfonic acid even though the sodium salt was old (4). It was indicated that the result would have been different if the potassium and lithium salts were asserted as patentable. In summary, it can be seen that experimental evidence is required where the new chemicals involve intermediates or are closely related chemically to known compounds. 2. NF•W COSMETIC PREI'ARATIONS New Cosmetic preparations fall into three possible groups. These are preparations involving: (a) all old ingredients, (b) at least one new ingre- dient, and (c) all new ingredients. (a) With regard to new preparations comprising all old ingredients, the rule is that where the result is merely the sum of the known properties of the components you are doomed to failure without experimental evidence show- ing an unusual or unexpected result. Engaging in polemics or derogatory statements concerning the cited ref- erences or the Examiner do not help. Nor do testimonials from satisfied users or vague statements such as the claimed preparation is "less oily," "non-irritating," etc. If you, however, can show that a new compound is formed in your preparation or that certain conditions are critical or un- expected results are obtained, the Patent Office is likely to allow your claims. It is the belief of the writer that this category offers a great opportunity for the cosmetic chemist. Instead of relying upon vague statements, the

78 JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS inventor should employ presently known scientific tests, such as those in- volving pH or antioxidants, or he should devise new tests, for example, actual tests on the skin. Who is better qualified than the cosmetic chem- ists to ascertain what data might be helpful and then go about with the job of obtaining the indicated data? (b) The same rule of unobviousness is generally applied where a new ingredient is substituted for an old ingredient in a cosmetic preparation, unless the new ingredient is being used in a most unusual manner. (c) Where, however, all of the ingredients are new, it is believed that a patent will generally be allowed without the need for any experimental evi- dence unless the Examiner can show that a chemist could have anticipated the results. The only difficulty here is that a cosmetic preparation all of whose ingredients are novel is indeed a rarity, and we are dealing with gen- eral situations. 3. NEW USES OF OLD CHEMICALS OR COMPOSITIONS In this category would fall a finding that an old product has a non-ex- pected striking property, not previously even remotely suggested. Where an old material is used for a purpose similar to its previous use, we consider it for our purposes as coming under 2 (a) or 2 (b). For example, if a prod- uct is known to be an antioxidant for gasoline and the claimed invention involves its use as an antioxidant for perfumes, it would fall under category 2 (a). However, if common salt were found to be a cure for cancer, we would consider it in the present group, as it is used in an entirely new en- vironment. In other words, the present group deals with new uses in the scientific sense, while group 2 deals with cases involving substitution of one material for another. The present category appears to be one of increasing importance. DDT is a well-known example. What usually happens is that a chemist, without knowledge of the previous work, will make a compound believed to be new and--what is more important--find a practical beneficial use for it. If upon examination it is found that that compound was described in the literature, even if only by its formula, the chemist cannot obtain a patent on it. The leading case on this point is In re Thuau (5). There are two ways out of the dilemma posed when a valuable invention is found to deal with a compound or composition which 'is old in the sense that it was described somewhere in the literature. The new use may be one which converts the compound from a statement forgotten after publi- cation (probably even by the author thereof) to a product which satisfies a great need. One solution is to add some material to the active agent and patent the composition containing that material. This is no solution where the active