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Flower power — can I patent a ‘natural’ product?

Once a ‘hippy’ phrase symbolising passive resistance to the Vietnam War and embraced by ‘flower children’ at Woodstock, ‘flower power’ has something of a different meaning to the innovators of today, thanks to plants’ powerful medicinal properties. The World Health Organisation estimates that 11% of the 252 drugs considered to be “basic and essential” — such as codeine, quinine, and morphine — all contain plant-derived ingredients.

This reliance on nature continues to grow — but how easy is it to obtain patent protection for products made with naturally-occurring ingredients?

An example — insect repellents

While on your holidays or at a festival this summer, you might look to protect yourself from the flurry of insects just waiting to tuck into your tasty legs. But instead of dousing yourself with insect repellents which likely contain synthetic chemicals (namely N, N-diethyl-m-toluamide (DEET)), you might look for a more natural form of protection in the form of ‘clean label’ insect repellents.

Many plant species produce essential (aromatic) oils that act as natural insect repellents. We’re all familiar with the use of citronella oil (obtained from lemongrass) within insect repellent sprays and candles.

Protecting flower power

Despite these essential oils existing in nature, it’s still possible to acquire patent protection for natural insect repellents. Often this is in the form of non-obvious synergistic combinations, for example:

European Patent No. 1667698

The inventors of this natural insect repellent identified that evening of primrose oil is effective. They also demonstrated the synergistic effect of combining it with catnip oil.

US Patent No. 8999407

This patent is for an alcohol-free insect repellent. A combination of essential oils from lemongrass, lemon eucalyptus, rose geranium and Litsea cubeba provides an effective, pleasant-smelling insect repellent that has a calming and soothing effect on the skin, due to the topical antiseptic, antibacterial and anti-inflammatory properties of the oils.

European Patent Application Publication No. 3370521

The European Patent Office intends to grant a patent for an insect repellent composition that includes oil of lemon eucalyptus (p-methane-3-8-diol; PMD), vanillin and sodium bisulphite. Citriodiol™ (now used globally) was the first PMD-based insect repellent active ingredient to be introduced to the European market back in 1995, as the active ingredient in Mosiguard™. But a problem with using PMD is its high level of volatility, leading to high evaporation from the skin. This limits the complete protection time (CPT) of PMD-based repellents to around four to six hours. The inventors from Neo Innova Healthcare Ltd found that vanillin, which contains aldehyde functional groups, can act as a PMD fixative by reversibly forming an acetal compound with the PMD. The PMD-acetal compound is less volatile than PMD alone and when administered as a dermal formulation is broken down into the constituent PMD and aldehyde at a slow release rate, which prolongs the CPT. However, a problem with vanillin is that it’s photosensitive and susceptible to discolouration. The inventors also identified that the inclusion of the antioxidant sodium bisulphite not only stabilised the vanillin but provided an additional synergistic effect by extending the CPT further from nine hours to ten.

Can I patent products derived from natural resources?

The flower children embraced the symbolism of universal belonging. In a similar vein, the Nagoya Protocol came into being in 2010. It focusses on the equitable sharing of genetic material (e.g. plant, animal, microbial or other), including traditional knowledge associated with genetic resources and the benefits that arise from their use.

The Protocol supplements the details of the “Access and Benefit Sharing” principles from the Convention of Biological Diversity. It was adopted by European legislation through ‘Regulation (EU) No 511/2014’ and came into force on 12 October 2014. This was then implemented into UK law though the Statutory Instrument ‘The Nagoya Protocol (Compliance) Regulations 2015’.

The Protocol recognises that benefits derived by users of genetic resources (excluding human genetic resources) should be shared with those who provide them, with the ultimate objective being the conservation and sustainable use of biodiversity.

Users of genetic resources — those conducting research and development (R&D) — are required to exercise due diligence to demonstrate that genetic resources and/or associated traditional knowledge (aTK) accessed on or after 12 October 2014 are utilised in accordance with applicable legislation of the providing country (if party to the Protocol). The user may need to demonstrate prior informed consent to access the genetic resource, mutually agreeing to terms for undertaking R&D activities, which may include benefit sharing in monetary or non-monetary form.

So, if you’re heading abroad or to a festival this summer, embrace flower power for an insect bite-free selfie…

To find out more about protecting your inventions and innovations with patents, feel free to get in touch with me at cxc@udl.co.uk.

Learn more about our experience in the food and drink sector.

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