What if I Figured Out a Product's Secret Formula and Sold It Under My Own Brand Name.

[Number]

@Chronos

And “superior flavor” can’t be the reason why Coke is successful, since most people (including dyed-in-the-wool Coke drinkers) prefer the taste of Pepsi: That’s what the whole “New Coke” debacle was about. Coke tried to make a cola that tasted better, thinking foolishly that that was what people wanted.

Malcolm Gladwell’s book Blink has an interesting examination of this.

The Pepsi Challenge (and Coke’s own subsequent trials) showed that a majority of testers preferred the taste of Pepsi when they took a single sip of each drink. The Coke executives freaked out and decided they needed to reformulate their product to taste more like Pepsi.

However, what those tests failed to account for is that in the real world, nobody takes just one sip of a soda. When people drink a whole 12 oz. can, a majority prefer Coke. Apparently Pepsi’s sweeter taste is great in a very small dose, but less appealing as a larger amount is consumed.

So it’s not the case that Coke sells better than Pepsi because Coke’s marketing is better. It’s that Coke’s product is genuinely more popular, when measured using realistic criteria.

[Alex_Dubinsky]

How about saying in your advertisement, “We reverse-engineered (using perfect, alien molecule-ID tech) Coke, and this stuff is exactly it! This is Coke!” And you plaster that all over. Would that somehow run afoul of their trademarks, etc.?

[not_alice]

@Huerta88

There’s a pretty bright-line rule with trade secrets: if you can reverse engineer an unpatented secret, without cheating, it’s always [thinks of potential exceptions, nope] okay. That’s not legal advice specific to his/her circumstances, it’s a statement of the principle.

What about the prohibitions against reverse engineering matters related to security, regardless of IP protection method, as embodied in DMCA?

This has major impact in our modern information innovation economy.

OK, so assuming you agree (and how can you not?) that DMCA has provisions against reverse engineering that apply to unpatented secrets (among others), wouldn’t the original post be legal advice since one had to use his or her legal judgment to decide among how to present the landscape in response to the particular question?

Not trying to play gotcha, just trying to see if here is a bright line test in Stoid-like questions (and I had no problem with how it was stated for her case).

[Napier]

@acsenray

[…] I don’t see how combining bog-standard ingredients in varying proportions could ever be novel or non-obvious. […]

Combining ingredients that are already known and standard can certainly be patented, if they yield a surprising result. A classic example is a battery cell consisting of one particular anode material plus one particular cathode material. A prior art patent already claimed cells made with an anode of any of the materials in list A plus a cathode made of any of the materials in list B, and yet somebody else was later given a patent for exactly that, one particular item in list A and one particular item in list B. The reason was that this particular combination turned out to be quite superior, and was not taught by the prior art patent. It has to be a surprising result, though.

I don’t know Coke’s formula, but some reference I read said that colas were generally mostly cinnamon plus vanilla flavored. I always liked cola and never guessed this, always thinking I was drinking the taste of some exotic jungle fruit. Well, if nobody know how to make cola but somebody discovered that cinnamon plus vanilla did it, though nobody would have guessed that’s how to do it, I think that would be patentable.

[mnemosyne]

@CookingWithGas

Come to think of it, I wonder why drug companies patent their drugs. Maybe the temptation to leak the processes would be too great since there is so much money involved and so it could never be kept secret.

Speaking only as a former chemist working under contract to Big Pharma, or in a Generics company, the reason for patenting a drug it to get a guaranteed timeframe in which to recoup their costs (assuming drug approval/no unexpected side effects that result in it being pulled off the shelves, etc.)

By the time a drug makes it to market, the company has invested years of effort and bazillions of dollars, and hasn’t yet made a dime off it. The structure and synthesis of the active drug ingredient itself might be easily known/determined by a competitor (often a lot of these drugs build on structures/reactions that are already known), and the composition of the tablet/capsule/cream/ointment/etc is trivially determined or largely irrelevant anyways, since a competitor or generic only has to prove bioequivalence but does not need to be chemically identical in its excipients. Most drug products only have a handful of ingredients in them anyways.

So patent law allows the Pharma company to exclusively sell the drug for X number of years before a competitor can be allowed in a given jurisdiction, and Pharma will try and make their bazillions back, plus profit, in those X years. A trade secret wouldn’t offer that protection.

The Generic company I worked for has several products “on the shelf” at any given time, with manufacturing plans/lab methods/etc all ready to go the second certain patents expire. First generic to market usually gets a giant chunk of the market cash associated with that drug that later released generics can’t get a hold of.

[gazpacho]

@Alex_Dubinsky

How about saying in your advertisement, “We reverse-engineered (using perfect, alien molecule-ID tech) Coke, and this stuff is exactly it! This is Coke!” And you plaster that all over. Would that somehow run afoul of their trademarks, etc.?

In the grocery store shampoo shelf there are a lot of cheaper brands with wording on the label to the effect. “If you like <brand X> try this shampoo”. I see similar things with perfume.

[Acsenray]

@Napier

I don’t know Coke’s formula, but some reference I read said that colas were generally mostly cinnamon plus vanilla flavored. I always liked cola and never guessed this, always thinking I was drinking the taste of some exotic jungle fruit. Well, if nobody know how to make cola but somebody discovered that cinnamon plus vanilla did it, though nobody would have guessed that’s how to do it, I think that would be patentable.

There are just too many hurdles here. If cinnamon and vanilla have ever been combined in any proportion, then it will always be obvious to combine them in different proportions. And I just can’t see how “this combination of vanilla and cinnamon has a slightly different flavor than this combination of vanilla and cinnamon” is ever going to be surprising. Combining two flavorful ingredients will result in a different flavor. It’s obvious.

The list of characteristics in CWG’s link is different – they’re significantly different from flavor.

[WarmNPrickly]

Patents are a double edged sword. Patents are public knowledge. But since you have a patent, only you are allowed to use it. But patents run out, and can be lost in other ways. This is why many companies prefer trade secrets. Even if an employee gets fired and works for a competitor (and often they can’t even work in the same field), the employee cannot have anything to do with the trade secret. If an employee were to tell everyone the recipe for KFC, that recipe would be aquired illegally.

[Kimmy_Gibbler]

@acsenray

There are just too many hurdles here. If cinnamon and vanilla have ever been combined in any proportion, then it will always be obvious to combine them in different proportions. And I just can’t see how “this combination of vanilla and cinnamon has a slightly different flavor than this combination of vanilla and cinnamon” is ever going to be surprising. Combining two flavorful ingredients will result in a different flavor. It’s obvious.

The list of characteristics in CWG’s link is different – they’re significantly different from flavor.

I would imagine the usefulness standard also explains some of the difference. In the battery example, a better (cheaper, more efficient, some characteristic or another) battery resulted. I would suppose, although IANAPL, that one would have a hard time convincing the patent examiners at the PTO that you have discovered a “better” or “more useful” cola.

[Stranger_On_A_Train]

@Chronos

You don’t reverse-engineer something that’s patented. The patent tells you everything you need to know to make one yourself, but at the same time legally prohibits you from making one yourself unless you license it from the patent holder.

Nitpick: patents include everything about the device which contributes its unique function or operation, or in the case of a process patent, how it goes together. It is not a complete engineering package, however, and generally doesn’t have sufficient detail for someone to directly reverse engineer the device in question. Most mechanism patents, for instance, have cutaway or exploded section views but no dimensions except those pertinent to the patent. You actually want a patent to be as general as possible to cover the widest range of configuration possibilities, and thus prevent someone from undercutting your patent by making a piece kidney-shaped rather than circular, or making it aluminum instead of steel.

Trade secrets, which is what the o.p. refers to, are not generally protected and can be exploited by anyone who can reproduce them. It is possible to patent some kinds of processes but these are often difficult to hold up on challenge, and so often not worth the effort.

Stranger

[Markxxx]

There seems to be a bit of confusion. First of all you *can * patent a recipe, but it has to be somehow unique, non-obvious, novel and useful. A failure to achieve any of these will mean the item (recipe or whatever) won’t be issued a patent.

For instance a traditional pound cake is:

A pound of sugar
A pound of flour
A pound of butter
A pound of eggs

No one could’ve ever patented this because there is nothing unique about it. There is nothing in the way the ingredents are combined to produce uniqueness. It’s nothing that could’nt have been thought of before or couldn’t be demonstrated to have been in use for ages.

Second of all it must be demonstratable. You can’t patent an idea. So you’d have to be able to present the recipe in such a way, that no one would’ve thought to do so.

From the US Patent Office Website

What makes an invention “novel”?

In the context of a patent application, an invention is considered novel when it is different from all previous inventions (called “prior art”) in one or more of its constituent elements.

What makes an invention “non-obvious”

To qualify for a patent, an invention must be nonobvious as well as novel. An invention is considered nonobvious if someone who is skilled in the particular field of the invention would view it as an unexpected or surprising development.

What makes an invention “useful”

An invention is useful if it provides some practical benefit, or helps people complete real world tasks.

It should be noted though useful can mean pretty much anything. For instance, musical condoms and forks that play music while you eat things have been patented. Thus their usefulness is for fun or novelty.

So you can see even if you discoverd the real formula for Coke you couldn’t patent it because it’s been around so long.

Last time I checked to file for an applicaton for a patent was around $1,500 so you’d better make sure it’s a darn good recipe to recoup your cost.

Remember trade secrets aren’t give the same protection as patents and trademarks. The protection arises mostly through contract. But the key to a trade secret is that it is SECRET. Once someone discloses it, it ceases to be a trade secret and the result is a complex legal mess. All the holder of a trade secret can do is sue the exposer for compensation. In practice it’s not much comfort.

The Uniform Trade Secret Act (not valid in all states and it is at the state level only, not the Federal level) says the remedies include, injuctions against further production, real damages, punitive damages and reasonable attorny fees to recover such awards.

[Acsenray]

@Markxxx

There seems to be a bit of confusion. First of all you *can * patent a recipe, but it has to be somehow unique, non-obvious, novel and useful.

Useful, novel, and non-obvious. “Unique” is not a separate requirement.

For instance a traditional pound cake is:

A pound of sugar
A pound of flour
A pound of butter
A pound of eggs

No one could’ve ever patented this because there is nothing unique about it. There is nothing in the way the ingredents are combined to produce uniqueness. It’s nothing that could’nt have been thought of before or couldn’t be demonstrated to have been in use for ages.

Again, “unique” is not part of the standard. It’s not patentable because it’s not novel and it’s obvious. Furthermore, adding vanilla to it is also obvious. And adding cinnamon to it is also obvious. In fact, adding anything to it that is already known as something that adds any flavor to any kind of food is obvious. That’s the problem with recipe patents. A change in flavor created by adding ingredients that are known to be flavorful will always be obvious.

Second of all it must be demonstratable.

I think the term you’re looking for is “enabled.”

You can’t patent an idea.

This is not correct. You can patent an idea, but you have to show that you know how to put that idea into practice. You can’t say “I came up with the idea of a perpetual motion machine” and get a patent. The idea has to be more specific. “My idea is taking these components and putting them together in this way and then doing this with them and they work as a perpetual motion machine, and it actually works, and anyone who is an expert in this field should be able to read this patent and make it work.”

[Alex_Dubinsky]

@mnemosyne

First generic to market usually gets a giant chunk of the market cash associated with that drug that later released generics can’t get a hold of.

??? It’s a generic! Don’t tell me marketing, brand loyalty, and other bs market power gets a hold there too?

[dropzone]

@Napier

I don’t know Coke’s formula, but some reference I read said that colas were generally mostly cinnamon plus vanilla flavored. I always liked cola and never guessed this, always thinking I was drinking the taste of some exotic jungle fruit. Well, if nobody know how to make cola but somebody discovered that cinnamon plus vanilla did it, though nobody would have guessed that’s how to do it, I think that would be patentable.

No, Coke is mostly cinnamon plus orange. Pepsi is mostly cinnamon plus lemon. Different strokes, and all, and tastewise it becomes important when making BBQ sauce, but I prefer the one with the most CANE sugar, which is usually Mexican Coke. Corn syrup ruined the both and beet sugar is, er, unimpressive. For some cost reason generic brands go with lemon and corn syrup.

Root beer is mostly wintergreen and vanilla.

ETA: My wife prefers the one with the most corn syrup when she cooks.

[Napier]

>And I just can’t see how “this combination of vanilla and cinnamon has a slightly different flavor than this combination of vanilla and cinnamon” is ever going to be surprising.

You would expect this combination to have a slightly different flavor than that combination. So, of course, it isn’t a surprise if they do.

If mixing vanilla and cinnamon in a 1.234 to 1 ratio makes them indistinguishable from chocolate, and 1.233 or 1.235 to 1 don’t, that would be very surprising, and would be patentable.

[Napier]

>You can patent an idea, but you have to show that you know how to put that idea into practice. You can’t say “I came up with the idea of a perpetual motion machine” and get a patent. The idea has to be more specific.

These are two unrelated points, and I think the first one is incorrect, at least in the US. For many years the USPTO has been issuing paper patents, which propose a way of doing something and then protect the result. Of course, if the idea doesn’t work, the “inventor” gets no benefit from the patent. If trying the idea is cheaper than going through the patent process, it is probably dumb to get a paper patent. But if someone comes up with an idea for turning Martian dust into diamonds, and a year from now the Cheap Martian Dust project the Government has been bragging about is supposed to bear fruit, such a patent might be a smart move.

The second point is certainly correct. You have to teach, and the teachings have to be good enough that somebody skilled in the art (of practicing the invention, not necessarily using the thing the invention produces) would be able to practice the invention based on common knowledge in that art and on the teachings. That is the whole part of the contract: the inventor hands over the teachings for publication, and the government offers to enforce a coercive monopoly for practicing any and all of the claims for 20 years.

[mnemosyne]

@Alex_Dubinsky

??? It’s a generic! Don’t tell me marketing, brand loyalty, and other bs market power gets a hold there too?

You’d be surprised. By being the manufacturer of the first generic, you have first crack at selling the product to hospitals,pharmacies and ultimately patients. A pharmacy won’t bother stocking the generic from Apotex or Ratiopharm if they already have the Sandoz product because they were first to get there. Patients then get used to seeing the “San-” prefix to their drug names and want to continue with that rather than change to the different coloured pills with “Apo-” or “Ratio-” in front of the drug name. The genetics market is highly competitive.

[Loach]

@not_alice

Has anyone provided “legal advice” as opposed to “infomration” in this thread?

Seems to me OP asked about a specific enough plan to embark on a reverse engineering escapade, amd some folks said, in effect, “based on the circumstances”, that is OK.

Some of those may be among those who have were quite active on the Stoid threads…

How can it be advice if no one, including the OP, is doing what is asked about in the OP? No advice can be given since it is not actually happening, just generic information.

[Alex_Dubinsky]

@mnemosyne

The genetics market is highly competitive.

No, what you’re saying would mean it is highly non-competitive

[Alex_Dubinsky]

@Loach

How can it be advice if no one, including the OP, is doing what is asked about in the OP? No advice can be given since it is not actually happening, just generic information.

Sure it’s happening. I’m doing it right now. x0xsource.com, baby!

And if I go down, you’re all getting sued for malpractice!