TASTE-AND-SMELL PATENTS: THE NEXT BUSINESS METHODS? A must-read article from futurist Thomas Frey on obtaining IP protection on tastes and smells.

On October 4, 2004, 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.