Roughly ten years ago I was involved in a conversation with some patent attorneys over the question of whether someone could patent a smell. The conclusion they reached was yes, as long as there was some system in place for defining smells.Enter the October 4, 2004 announcement that two Americans were awarded the Nobel Prize in medicine for discovering how people can recognize and remember an estimated 10,000 smells, ranging from smelly garbage to expensive perfume.
The two researchers, Dr. Richard Axel and Linda B. Buck, won the prize for scientifically describing how odor-sensing proteins in the nose translate specific tastes and smells into information in the brain.
Their breakthrough stemmed from a 1991 discovery of a family of genes devoted to producing different odor-sensing proteins, called receptors, in the nose. Their work showed that people have a few hundred types of odor receptors, each of which can detect only a limited number of odors.
When a person sniffs cologne or fresh chocolate chip cookies, for example, a mix of different types of molecules flows over the receptors in the back of the nose. That activates an array of the receptors, but only those primed to respond to those particular molecules. The brain notes which receptors are activated, and interprets this pattern as the smell.
This receptor patterning is not exactly the periodic table of elements for the nose, but its setting the stage for one.
Patenting smells in the past was limited to describing the chemical composition of the substance. Receptor patterning opens the door for a variety of new patenting possibilities, as well as a world filled with infringement pitfalls.
As the science progresses, the first patents will center around a defining system giving the odor world its own digital or numeric taxonomy, producing some sort of portable odor meter to “test the air” any time, any place. Then the fun begins.
The Patent Office will not allow the protection of existing products just because we now have a way of describing them, but in all likelihood crafty patent attorneys will figure out ways of making the old products sound new again. When determining if an idea is new and worthy of a patent, the Patent Office searches existing patents. Without anything to search, we can expect many “trial balloon” patents will issue.
Perhaps more important will be the decision as to whether smells can be trademarked as symbols of the products or services they represent. Sounds and colors are commonly trademarked today because of the commercial impression they leave on consumers. Smells cannot be far behind. Unlike patents, which expire after twenty years, a trademark can go on forever.
Manufacturers of chocolate will protect the scent of their own branded chocolate formulas. Since smell and taste are closely intertwined, they will essentially build a fence around a category of food flavoring for which they will receive royalties until the patent expires two decades later.
Bakers will find out they can patent the smell of their breads and baked goods. But more importantly, they will figure out how to package the fresh bread smell into air fresheners for realtors to spray around the houses they are about to show.
Marketing people will begin to link smells and tastes with childhood memories, creating an assortment of tools for pressing the involuntary “buy” button in our minds.
In addition to food smell patents, car manufacturers will begin to patent the new car smell that sets them apart from the competition.
As aromatherapy moves into more of a hard science, medical and counseling practices will be set up using odor-based behavioral modification technologies to remedy such conditions as phobias, anxieties, and paranoia.
However the pitfalls of protection will also give rise to a variety of new legal battles. Restaurants who manage to patent or trademark their aroma will attempt to put their competition in a legal headlock, giving themselves a category of dominance and an unusual competitive advantage.
Wine producers will patent the “nose” of their finest Chardonnay and Merlots to keep their competition at bay. Hard liquor distillers will find a way to patent the smell of “happiness” and sell bottles of intoxicating fun that only they can offer.
And cigarette and cigar manufacturers will enter the fray, adding layers of protection to the “flavor” that accompanies their image in the marketplace.
I’m sure I’m just scratching the surface of possibilities here. But the systems for owning smells will open a rich treasure trove of opportunity for those interested in capitalizing on it. Many people will correctly guess that this one smells like money.
by Thomas Frey