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

SCIENTIFIC DATA IN COSMETIC PATENT PROGRAM 81 that adequate patent protection cannot usually be obtained in cosmetic cases without experimental evidence furnished by the cosmetic chemist. 6. I• RETROSPECT It is my opinion that the cosmetic industry has wasted a lot of money in connection with attempts to obtain U.S. patents because it has not, gen- erally speaking, met the need for experimental evidence. This is one of those dicta which is in the same category with predictions as to what is going to happen 100 years from now. No one can disprove such a statement because no one is in possession of or can obtain all of the facts upon which a considered opinion can be based. Nevertheless, I think the statement is a valid one, being based not only on my own experience but that of a num- ber of colleagues, and I daresay that this view is shared by many of the Ex- aminers dealing with cosmetic cases in the U.S. Patent Office. 7. I•r PROSPECT The question for the cosmetic industry posed by this paper is a simple and clear-cut one: Should the industry continue to expend sums of money on patents and either not obtain in many cases any patent at all or in other cases obtain inadequate protection, or should it meet the requirement for more technical facts ? An easy way out would be to forget about patents entirely and rely upon keeping the new findings secret. It is understood that there have been some notable examples where this secrecy has been practiced successfully. One might mention in this connection a well-known bitter ingredient of some well-known cocktails. Also, I remember reading once that a family handed down from genera- tion to generation certain secrets in connection with the handling of births so as to minimize deaths resulting therefrom. After the last of the family died it was just too bad for society until the medical people developed tech- niques which resulted in the fine record in this connection existing today. Generally speaking, the trouble with keeping matters secret is that it just doesn't work out that way for very long. For one thing, while the law will protect you in your rights to a trade secret as long as it is a trade secret you have absolutely no protection against someone else finding out the same thing independently. When one considers that different people in the cos- metic and other industries think more or less alike and more or less on the same problems the chances of independently made identical findings are rather appreciable. Another weakness of the trade secret method is that there is considerable turnover in personnel. The trusted people who have the secrets today may be with competitors tomorrow. According to one study the annual separation rate of research engineers and scientists in 1951 was over 16 per