New York, NY asked in Intellectual Property and Patents (Intellectual Property) for New York

Q: Can I patent a mouthwash made w/ over-the-counter ingredients offering no health claims other than fresh breath?

1 Lawyer Answer
Peter D. Mlynek
Peter D. Mlynek
  • Patents Lawyer
  • Moorestown, NJ

A: Yes, this is done all the time. Your patent would be a formulation patent. The majority of patents that I write are formulation patents.

A couple of notes:

(1) The biggest problem that you need to overcome is the obviousness rejection. You can't just take known ingredients, mix them up to make a new mouthwash, and get a patent on it. There must be some sort of unexpected results, such as synergistic effects.

(2) You are going to have to come up with some hard-core data that shows unexpected results. It is insufficient to say that your mouthwash gives fresh breath. You need analytical data. You should be using procedures that are already used in the industry, preferably standard ones such as ASTM, DIN, ISO, etc. You can adapt a standard method from another field if such tests do not exist for mouthwashes, but the problem is that it will be difficult to prove what the analytical data for existing formulations are.

(3) These unexpected results should be statistically significant, but do not have to be huge. Also, the unexpected results can be in any number of characteristics of the formulation, not necessarily the most important characteristic that drives your sales.

(4) You do not need to worry about health claims. If you can show a health benefit, then that's great, but it is not necessary.

Good luck!

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