If you’ve just finished developing an awesome supplement, you might be wondering how you can protect your new supplement formula. The United States Patent and Trademark Office (USPTO) offers inventors of new compositions of matter, including formulas, the ability to protect them with a patent.
Patents allow inventors to stop others from using, making, and selling the patented invention (supplement) for a limited period of time. For utility patents, the protection lasts for 20 years from the day an inventor files a utility patent application with the patent office. So, can you protect the formula for your supplement by patenting it? We will answer this question below.
Can You Patent a Supplement Formula?
The short answer is yes, you can patent a supplement formula, but to obtain a patent, the supplement formula must satisfy the patenting requirements set forth by the patent office. To patent a supplement formula, you must show that your supplement formula contains patentable subject matter, the formula is novel, it’s nonobvious, and the formula is useful.
That said, two of the biggest obstacles an inventor will face while seeking to patent a supplement formula is showing that the formula is novel (new) and that it’s nonobvious. This is so because adding a single ingredient or two is usually insufficient to make a supplement formula patentable. More on this below. So, let’s discuss the requirements for patenting a supplement formula.
The Supplement Formula Must Have Patentable Subject Matter
The patent office requires applicants for utility patents to have an invention that has patentable subject matter. Said differently, the supplement formula you want to patent must be the type of invention for which the patent office offers a patent. For supplement formulas, the mixture of ingredients qualifies as a composition of matter that satisfies this requirement. That said, once you’ve satisfied this requirement, you still have three other requirements that have to be met.
The Supplement Formula Must Be Novel
To patent a supplement formula, patent law requires the supplement formula to be novel (new). This basically comes down to having a supplement formula that has never been publicly disclosed or patented. When we say the formula has to be new, we are not talking about individual ingredients having to be new, but rather that the combination of ingredients that go into the formula has to be new.
Your supplement can use ingredients that are used in other supplements, but you have to add something to your supplement to make it different than anything else that’s out there. For example, adding more caffeine to a supplement is unlikely going to be enough to patent a supplement because many supplements already contain caffeine.
That said, if you’re able to prove that your supplement is new and unique because it has some unexpected ingredients, you might be able to patent it if you can satisfy the remaining two requirements.
The Supplement Formula Must Be Nonobvious
To get a supplement patented, the applicant must show that the formula is nonobvious. That is, the applicant must show that the formula was not obvious to a person of ordinary skill in the field of supplements at the time the applicant files his utility patent application.
When determining obviousness, the patent office looks at the supplement formula from the point of view of an ordinary person skilled in the field of the supplement. If that person would have deemed the formula to be obvious, the patent examiner will not allow the formula to be patented. However, if the patent examiner determines that the formula was not obvious, he may allow it to be patented so long as it satisfies the remaining requirements.
Usually, adding more or less of the same ingredient is not sufficient to make a supplement formula nonobvious. For example, adding more caffeine to an energy supplement formula is unlikely to make it nonobvious because a person skilled in the field of supplements may deem it to be an obvious thing to do.
The nonobviousness requirement may well be the most difficult hurdle that a person seeking to patent a supplement may face. To get a supplement formula patented, the combination of ingredients has to be one that no one has thought of doing. So, adding something new and unexpected will place the applicant in a better position to patent his supplement formula.
Developing a new ingredient and adding it to a supplement makes a supplement formula more likely to be successfully patented. In short, to improve the chances of patenting a supplement formula, your supplement should incorporate unexpected ingredients or newly developed ingredients because this contributes to the nonobviousness of the formula to be patented.
The Supplement Formula Must Be Useful
To patent a supplement formula, the formula must be useful. Said differently, the supplement must provide the end-user with some identifiable benefit. For example, if a supplement formula boosts energy or provides users with more nutrients or vitamins, this could be enough to satisfy the usefulness requirement.
Supplements are rarely challenged on the grounds that they are not useful. However, when preparing a utility patent application, the applicant should explain the usefulness of the supplement, as well as how it benefits the user and how it should be used. That said, the usefulness requirement is usually easily satisfied and as long as the patent application is properly prepared, this element shouldn’t be an issue.
Hire an Attorney
If you want to patent your new supplement formula, you should contact a patent attorney who specializes in supplement patenting. Many patent attorneys offer free consultations, so you can explain to them what type of supplement you want to patent and they should be able to advise you on how to proceed with patenting your supplement.
If the attorney says that you have a good shot at patenting your supplement, you should have them prepare and file a patent application on your behalf. Patenting your supplement is a complicated process, so having an attorney who understands what needs to be done to obtain a patent is your best option.
That said, if you can’t hire a patent attorney, just know that you have the option of hiring a patent agent. Patent agents are qualified and licensed by the patent office to assist inventors in patenting inventions, such as supplements. So, find one, contact him and explain the details of your situation to him and they should be able to give you information on how to proceed with the patenting process.
That said, the patent office allows inventors to patent their invention without an attorney or patent agent. However, the patent office recommends that you hire an attorney to assist you with patenting your invention because there are many requirements and hurdles that only an attorney will know how to overcome.
Why Should You Patent Your Supplement Formula?
Inventors often opt to patent their supplement formula because a patent gives them the ability to stop others from using, making, and selling the patented supplement formula for a limited period of time. Utility patents offer 20 years of protection that starts from the day an applicant files his utility patent application with the USPTO.
During the 20-year patent term, you will be able to be the only person making and selling the patented supplement formula. Note, however, that you cannot restrict others from making and selling the formula until the patent office grants your utility patent application.
If another party copies and selling your patented formula, you can send them a cease and desist letter ordering to stop their infringing activities. However, if they don’t stop, it’s your job to sue them for patenting infringement. The USPTO will not police your patent for you, you have to file a lawsuit and if you’re successful, the court will give you a court order, ordering the party that copied your supplement formula to stop making and selling your patented supplement.
Patenting a Supplement Formula
By now, you should know that some supplements and supplement formulas can be patented at the USPTO. However, to patent a supplement, the inventor’s formula must satisfy the requirements we covered, as well as properly preparing a utility patent application, filing it with the patent office, and paying the required patent office fees. That said, if you have any general questions or comments, please feel free to leave them in the comments section below.