PATENTS AND THE :•i.:necessary to resort to High Court xoceedings. ß The Patents Act, 1040, which :i:.:ame into force on January 1st, 1950, has now been in operation for just over three years, and while the meaning and effect of some of its provisions are still in doubt as they have not received judicial interpre- changes have in general been bene- ficial and of advantage to the trade and industry of this country. PATENTS AND COSMETICS With regard to inventions relating particularly to the cosmetic industry, these chiefly concern compositions, methods for treating the hair, and small devices for carrying out beauti- fying treatments andnovel containers for various cosmetic preparations. It is possible to obtain a valid patent for a novel composition, but in addition to novelty there must also be present an element of subject- matter, and in general this arises because the composition gives un- expected advantages. The difficulty in drafting the claims of a patent for a composition are, however, very considerable, because the tendency is either to make the claims too narrow, in which case a competitor can easily avoid them, or to make the claims too wide, for example, by including something which is old or something which does not give the promised result, or, in fact, Mll not give any useful result at all, in which case the patent •11 be held to be invalid. Further difficulties arise because usually the invention origin- COSMETIC INDUSTRX2 ares by the inventor preparing some particularly useful composition, and it is then very difficult to determine what other substances may be substituted for the various ingredi- ents and also to determine which of the ingredients are essential and also if any particular proportions of in- gredients are essential. Naturally, the larger the number of ingredients the more difficult becomes the problem. At first sight it may appear to be a fairly simple matter to draft a claim which is Wide enough to give adequate protection whilst not being so wide as to be invalid on any of the statutory grounds, but in fact the problem is often extremely difficult because the inventor is usually not in possession of all the facts with regard to the various possibilities and also with regard to what has previously been published. If it is a choice between a somewhat wider or a somewhat narrower claim, I should in general advise the some- what narrower claim in •4ew of its increased chance of being held valid, and take the risk that some potential infringer might escape because the alternative open to him will almost certainly be considerably less advan- tageous than the best embodiment protected by the claims of the patent. At one time the comptroller refused applications for treating human hair whilst still on the human body on the ground that the monopoly claimed was not a manner of new manufacture, which I may mention is still the definition of invention given in the Act. The words "manner of new manufac- 223

JOURNAL OF THE SOCIETY OF COSMETIC CHEMISTS ture" have received judicial inter- pretation many times since the passing of the Statute of Monopolies, and in general one of the marks of a manner of new manufacture is the production of a vendible product. At one time the Patent Office took the view that hair dyeing or hair waving, if carried out on hair still attached to the human body, was not a manner of new manufacture because there was no vendible product, although patents were granted for the treatment of human hair if it had been previously re- moved from the body, presumably because the hair so treated could be sold. During the past few years, however, the Patent Office practice has apparently changed, because in recent years a number of patents have been granted for methods of permanent waving. As far as I am aware there is no decided case on this point and it may well be that the Courts would hold such patents to be invalid as not referring to a manner of new manufacture. Suct• claims, of course, have, in any case, only a limited value, because in this country there is no offence in aiding and abetting infringement, so that the person who sold the hair-waving preparation would not infringe a claim which was restricted to a process of permanent waving the infringer would be the person who actually carried out the permanent waving operation, who might, of course, be a hairdresser, or, in the case of home waving, the person whose hair was treated, and it would obviously be a very difficult task to proceed against all such infringers. Nevertheless, such claims may have a certain value because they will have a deterrent effect upon poten- tial infringers who will obviously not desire to be involved in expensive proceedings in the High Court. Patents relating to small cosmetic devices are in effect in the same position as any patent relating to a mechanical device. The claims will be directed to the device itself and in general will depend for novelty upon the the novelty of a combina- tion of known elements. Similar considerations will apply to patents for containers and other packages. Since some cosmetic preparations may have a medical effect, reference may perhaps also be made to special provisions concerning medical and surgical inventions. Briefly, Section 41 of the Act provides that in the case of a substance capable of being used as food or medicine or in the production of food or medicine or processes for the production of such substances, and also in the case of inventions capable of being used as, or as part of, a surgical or curative device, the Comptrollef •vill, unless he sees good reason to the contrary, grant to any applicant a compulsory licence on such terms as will, as far as possible, enable the products to be made available to the public at the lowest prices consistent with the patentee deriving a reasonable ad- vantage from his patent rights. A similar provision was present in the old law and its object is to see that the prevention and cure of disease is not hampered by the existence of patents. 224