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,

80 JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS ß there is not too much of a problem here if product protection is obtained, as process protection will then be given more or less as a matter of course. However, it may be helpful to show better yields, critical conditions, etc., which again means experimental•evidence will be helpful. If product pro- tection is not obtained the situation will be substantially the same as in (b) below for all practical purposes. (b) With regard to the process of making old chemicals and composi- tions, it is necessary to show better yields, quicker results, or a technical advantage. Critical conditions or amounts are very helpful. In one case 'the Patent Office Appeals Board stated that the real criterion of patentabil- ity is not whether the steps are shown in the prior art but whether the use of the material in the process claimed is suggested by the prior art (10). The U.S. Court of Customs & Patent Appeals, which reviews decisions of the Patent Office, has pointed out that, in treating method claims, steps or features such as proportions or ratios and temperatures cannot be treated in an abstract manner. The materials acted upon and solvents are to be considered as patentable limitations (11). From the foregoing it can be seen that experimental evidence here is just about a must. (c) With regard to processes for. using old chemical compounds or com- positions a showing of unexpected and unusual properties as is the case with regard to new uses of old chemicals or compositions is also required. As a matter of fact, indeed, if you have found a new use for an old chem- ical or composition and you do not have any luck claiming it as such (category 3 above), then protection can sometimes be obtained by couching the invention in terms of a new process. For example, in the second DDT patent (12) the use of DDT was covered in process form as follows: The method of killing insects which comprises dissolving the chemical compound alpha, alpha-di-(p-chlorop.henyl)-beta, beta, beta-trichloro ethane) in a solvent liquid and spraying the liquid so as to bring the alpha, alpha-di-(p-chlorophenyl)-beta, beta, beta-trichloro ethane) into contact with the insects. It is believed that cosmetic cases lend themselves admirably to this de- vice, for example: A process for waving hair which comprises . . . (here insert the steps involved, including the use of the hair waving agent). Of course there are advantages to certain types of claims over others but such questions go beyond the scope of this paper and, anyway, sometimes one does not have a choice. 5. CONCLUSION It has been shown that the requirements of the U.S. patent laws are such