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

SCIENTIFIC DATA IN COSMETIC PATENT PROGRAM 79 agent can be used by itself. However, as a practical matter, active ager•ts are used with other materials in most cases. This was true even in the DDT case as it would be impractical to use DDT without a liquid or solid carrier. ß The solution under discussion is one which itself is fraught with danger. For, if the added ingredient is defined in too broad a fashion, for example, "solvent, .... carrier," etc., the Patent OfFice will not allow the claim on the basis of the Thuau doctrine. On the other hand, if the diluent is recited in too narrow a manner the patent will be weak as it can be circumvented by using other materials not covered by the claim. Here is another place where the chemist can be of great help. He can analyze the problem from a chemical point of view and then by a process of chemical reasoning followed by experi,mentation lay out a definition for the added ingredient so that it is broad enough to make protection meaning- ful and yet not too broad as to encompass a large number of additives which would not give the desired result. Examples of a couple of broad statements which have been allowed are the following: "a bland vehicle compatible with a mucous membrane" (6) and "non-toxic organic oxygenated so,lvent" (7). A second solution to the dilemma posed above is to call for a composition which in terms inherently requires other components. Some Examiners of the Patent Office handling cosmetic cases will allow such claims. Examples of two such claims in issued patents embodying the last-stated principle are the following: A baked cereal food containing an appreciable but small amount of bentonire (8). A poultry feed containing from 0.1 to 10 per cent of 2,2'-dihydroxy $,5'-dichloro diphenyl methane (9). In the cosmetic field claims calling for a "cosmetic cream containing X" and a "dentifrice containing X" are believed to recite inherently other in- gredients and might well be allowed, but perhaps only after a battle with the Patent Office. It may well be that other considerations, such as the need to avoid the prior art, may dictate specifying other ingredients. The foregoing sugges- tions are merely for consideration as possible ways out of a dilemma where an entirely new use for an old material has been found and broad protection is not only desired but possible. 4. PROCESSES FOR MAKING COSMETIC CHEMICALS OR PREPARATIONS This category breaks down into three classes. These are processes in- volving: (a) new chemicals or preparations, (b) the making of old chem- icals or preparations, and (c) uses of old chemicals or preparations. (a) With regard to a process for making new chemicals or preparations,