Wednesday, August 19, 2009

Patent Pending on Natural Pigments

Recently I was contacted regarding the company 100% Pure and its patent pending for use of fruit, vegetable, flower and seed pigments for use in cosmetics.

The concern was that if 100% Pure succeeds in their patent then it will negatively affect all natural cosmetic companies.

The author requested that we call the examining attorney Tania Ashby at 571-270-1348 and that we write a formal complaint to the commissioner for patents

The Commissioner
for Patents
PO Box 1450
Alexandria, VA 22313-1450

OK, I have passed the word along, now here is what I have thought about this over the years.

1) The folks at 100% Pure are based here in the Bay Area and I have talked with them as well as sold product to them. In particular, the female founder has taken a mineral makeup class from me when I taught years ago at thenovastudio.com. This in itself doesn't mean anything but I wanted to let you know that the people behind 100% Pure are just people. In some ways they are small, independent natural businesses just like yours (if you have one), although perhaps better funded. They operate out of a 30,000 square foot warehouse in Oakland.

2) I always scratched my head over this patent, because the FDA regulates what color additives are approved for use in cosmetics and the list touted by 100% Pure aren't FDA approved. In my mind, 100% Pure was (is) in violation of the FDA regulations regarding color additives in cosmetics.

3) But lots of companies do use "fruit, vegetable, flower and seed pigments" in their products. For example, Aveda uses botanicals in its formula for Black Malva shampoo. But Black Malva is not on the FDA list of approved color additives. I think the reason they get away with this is because they add it as a "botanical additive" not as a "color additive". Typically, color additives are at the end of an ingredients list in the "may contain" section. I suspect that Black Malva is up there above the "may contain" designation and listed as a botanical. Botanical additives are not regulated by the FDA. This tricky little slippery slope has been used by all kinds of natural cosmetic manufacturers to insert natural coloring agents into their products.

4) So why the patent application by 100% Pure? After scratching my head for about a month, I finally sat down and read the the patent, quickly (patent application number 20060280762) . My read was that they are by-passing the FDA regulations for their current product line by claiming that they are not coloring the cosmetic, they are coloring the body, the fact that there is a cosmetic in between is kind of an "afterthought". For example, cherry juice stains the lips. Yes, there is some waxy oil blend (read: lipstick) which is used to apply it to the lips, but the cherry juice is not there to color the waxy oil blend, it is there to stain the skin of the lips. Maybe I am misunderstanding the patent application, but when I rephrased it that way at least I understood how they were getting around FDA regulations.

5) But let's say I'm wrong.
Let's just say we all agree that "fruit, vegetable, flower and seed pigments" are not approved for use in cosmetics by the FDA.
Let's say that 100% PUre is currently manufacturing in violation of FDA regulations by claiming that they use natural pigments to color their cosmetics -- pigments which are not on the approved list. Are people being harmed? Nope. Why is that? Because the ingredients are not inherently unsafe. They are not approved by the FDA simply because no one has no one has invested the money necessary to have them become FDA approved. Why would they when they have so many reliable analine dyes to use instead.

6. So, perhaps the folks at 100% Pure are pure genius. Even if natural pigments are not FDA approved I assume that this does not prevent you from filing a patent for the idea. And if you held a patent on the idea, funding for such FDA approval would easily follow because all of a sudden you would own something that everyone -- especially the big guys -- would be willing to license. As an example, perhaps the
attorney for a patent-holding 100% Pure would argue that the ONLY reason the Black Malva is in the Aveda shampoo formula is because Black Malva is a dark pigment and it offers some natural darkening to the hair. It does not offer any other qualities (such as shine, or silkiness). Therefore the use of the Black Malva in the shampoo formula violates the patent and therefore Aveda must cease and desist and/or pay 100% Pure a license fee.

OK, lots of guessing, speculating and noodling in the above. I'm not telling you what the situation is, I'm throwing in my two cents. I'm sure there are some errors in my thought process and I welcome feedback. But if I'm right even 80%, I have to say, the folks at 100% Pure smarter than I originally thought.

Kaila Westerman

18 comments:

Anonymous said...

Kaila, thanks for the heads up. Pondering the potential implications of their patent application should make anyone's brain hurt.

Many valuable small business lessons to explore and learn from this. I can't believe how many cans of worms you opened with your 'two cents' this time!

m. lemons

Anne-Marie said...

What's the patent application number? Would love to review it and perhaps comment formally after reviewing it.

I couldn't find it with a cursory view on the uspto.gov site.

Kaila Westerman, TKB Trading, LLC said...

I've updated the blog with the patent number. here is the url:
http://www.freepatentsonline.com/y2006/0280762.html

Kaila

flowerpower said...

As far as i can recall you cant patent anything that is in nature. like lets say parsley or basil or tomato,you can however paten a proses in which you can extract a property from the natural fruit and or herd or vegetable.
Hildegaard's herbal and other ancient herbal remedies would then be patenable which would render oriental medicine and tea blending illegal unless they owned the patent.Sue.M

Anonymous said...

Does this mean that since I have been using fruit, herbs, flower, vegetable extracts in my cosmetics that I will not be allowed to use these ingredients if this goes thru? I have been using these ingredients for the past 6 years, I even use some of my home grown ingredients! This is not new to the industry, look at all the skin & makeup companies that have been using these ingredients in their products, companies like Loreal, Lancome, they use some extracts as well! Look at all the Chinese & Japanese herbal companies using the exact same ingredients?! They have been using these for hundreds of years, I don't think this patent should be allowed to go thru. Fragrance companies & Italian Bath & Body have been extracting color pigments & antioxidants for years as well, well before Susie started her company.
Here is what is on her website:
100% Pure holds US & International Patents pending for the use of fruit, vegetable, seed and flower pigments in cosmetics.
also:
the first and only cosmetics made from antioxidant rich fruit
and vegetable pigments. While other color cosmetics are made
with either FD & C Colors (synthetic dyes) or minerals, only
100% Pure color cosmetics are made with fruit + vegetable
pigments (patent pending)! All the antioxidants and vitamins in fruits are in the actual
color, so you will be applying all the healthy nutrients of the fruits directly on your skin!

I hope the US Patent office doesn't allow this to happen, it will hurt our business! What can we do to try to stop this?? I will do my part!

Kaila Westerman, TKB Trading, LLC said...

Hi Anonymous,

This is the person you should contact with your concerns:

The examining attorney is Tania Ashby at 571-270-1348 and formal complaints may be sent to to the commissioner for patents

The Commissioner for Patents
PO Box 1450
Alexandria, VA 22313-1450

Anonymous said...

That is horrible!

How long will it take to approve it or deny?

Anonymous said...

I have looked at the patents made by Ms Wang and her husband Richard Kostick (and co-inventor James Wang) that are listed on websites (i.e. freepatentsonline.com). When I input the USA patent numbers to the USA patent registry search engine, they all came up as failed applications, because of inventor failing to respond to some communication I think. I also looked at info on the UK application, and so far as I can tell it is either in process or failed - there are marks at the bottom of the application regarding potential problems with the invention, and lack of inventive ideas.

Some of the patent applications they've made here

The UK patent application file is here with patent publication info here

Having looked at some of the methods they describe for extracting the pigment(s) from the plant sources (and they label vegetable, flower, fruit, seed and nut sources NOT just fruits) I wonder if their resulting pigments are as natural as they say.

It's a good idea to do a search for patents filed by 'velveteen bunni llc" as that's the company name used for filing some patents - either for practical purposes or to hide the number of patents filed from plain sight! Also, as Richard Kostick is usually the first named inventor, and some applications only list the first named inventor, looking under his name could be helpful too.

So far they don't seem to have had much success, so perhaps that's why they're permanently advertising 'patent pending', as they keep trying...

There are patent applications made in India, Japan, Canada, and perhaps other countries.

Although they claim to be the only company using these plant pigments, there are in fact a couple of manufacturers of plant-based pigments for cosmetics(search for french company "Lessonia.com microzest pigments", and their USA supplier bioorg.com), at least one other company using flower pigments, and 'lip stain' and 'cheek stains' are all the rage, making the concept of staining skin with pigment less novel. A question to ask is how would small-business mineral makeup companies adjust, and survive, if the fashion in makeup moved toward plant sourced pigments? Something for people to keep in mind so that any new trend won't take them unawares!!!

Hope that helps: searching for fruit, vegetable, plant pigments + makeup

Anonymous said...

As an update to my previous comment, there's also info on biological pigments that shows that they've been used in products for a long time (i.e. henna for skin and hair, and various approved plan-sourced pigments in commercial food and cosmetics manufacturing) so the concept of fruit pigments is really not that new - it's the advertising spin that makes it appear new since the colors are referred to by origin-names, instead of by standardised commercial code numbers/names etc. Plant-based pigments, even if not the exact recipes/formulas/sources 100% Pure are using, have been used commercially for ages, and staining skin/hair is not a new concept. I guess your regulations in the USA make it hard to experiment with new color additives, leading to some trickery to get around them. :)

Anonymous said...

I wrote the last two anon comments. Just wanted to add I have nothing against Susie Wang et al. Having more organic cosmetics and personal care is great - but obviously this patent is quite a nasty shock to some companies and/or concerned individuals out there. I did some research after coming across this blog post, and shared it in the belief it would be helpful... My hope is it all works out - for anyone involved, affected, frustrated, confused, or concerned (!) about this subject.

Best wishes. Monica.

Anonymous said...

You have really great taste on catch article titles, even when you are not interested in this topic you push to read it

Anonymous said...

How you find ideas for articles, I am always lack of new ideas for articles. Some tips would be great

Anonymous said...

I find this disturbing, as it seems thay are just trying to ruin any kind of competition. Reminds me of a story I just read of a lady claiming ownership of the sun and she wants everyone to pay her a fee. Now I know to never buy any of their product.

Anonymous said...

I find consumerism and greed involved. Shame on 100 Pure - I would not buy from them.

Anonymous said...

I find this appalling. The claim that 100 % pure are the only company doing this is a lie. There are many small and large companies who do this. It was also common for women to stain their lips directly with fruits. This is another case of corporate greed and I would never buy from their comapny because a compnany who would want to destroy other small businesses livelyhood is not good. I would also wonder where they sourced their ingredients from?! I do hope this does not go through.I think i'll stick to Mushulou handmade or Uzuri organics thank you.

Anonymous said...

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honest but your blogs really nice, keep it up!
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Anonymous said...

I would not buy from 100% Pure nor would i recommed it to anyone!! Does anyone know if the patent went through?? I know it has been some years now....

Anonymous said...

I used to love 100 % pure cosmetics but now I wouldn't recommend 100% to anyone. This company is very shaky. There cosmetics go bad in a very short time. They lied about their ingredients and tried to mislead us with wrong informations, not an honest company at all. And they will try everything to hide their flaws, even delete customers reviews!
Bad bad bad company