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Part I: Is Patenting Food Ingredients in Cosmetics Obvious?


by Louis Paul and Paul Thau

Sometimes, inventors try to claim what others may view as obvious and therefore not patentable.  Nonetheless, patents continue to be granted. Why? And what can be done when faced with a patent claiming what may be an obvious invention?

It is not uncommon for cosmetics chemists, particularly those at multinational companies, to seek out innovative technologies from allied industries, including foods, pharmaceuticals, textiles, paints and coatings, plastics and polymers. Among the technologies that have been successfully adopted (sometimes with modification) in cosmetic and personal care products are specialty nutritional agents, antioxidants, such as coenzyme Q10 (CoQ10), alpha lipoic acid (ALA), xanthan gum, Teflon and treated pigments. 

To further secure the benefits of technology adaption, companies, and individual inventors, are filing more and more patent applications claiming what may be a new use of an already existing material.  Sometimes, cosmetic patent applications claim an “old" material in a “new" combination with cosmetic or personal care ingredients. Other times, these patent applications claim what the inventors identify as unique sensory—aesthetic or performance attributes of these already-known materials.

Whether a new use of an old material is patentable is a complex question—one that is highly dependent on particular facts. An analytical framework for considering whether what is old can be viewed as new, non-obvious, and, therefore, patentable is most easily done through an illustrative case study—application of aeration technologies from the food industry to create cosmetic mousses and other whipped products containing sucrose esters.

Sucrose Esters: Chemistry Overview

Based on sucrose and vegetable fatty acids, sucrose esters are natural, PEG-free, non-ionic emulsifiers.  By varying the degree of esterification of the sucrose molecule, sucrose esters spanning a wide range of HLB values—from 1 up to 16—are available. This broad HLB range makes sucrose esters versatile emulsifiers for both oil-in-water (O/W) and water-in-oil emulsions (W/O).

Sucrose esters can be effectively used with a wide range of oils of different polarity, as well as with silicones. Additionally, high levels of powders can be incorporated in sucrose ester emulsions. In O/W emulsions, sucrose esters can also form lamellar liquid crystalline networks by themselves or in combination with other emulsifiers, thereby optimizing emulsion stability. 

When compared to formulations based on conventional surfactants—particularly anionic surfactants known to have potential irritancy—emulsions containing sucrose esters have been recognized to provide measurable improvements in skin tolerance and sensorial properties. These properties, together with exceptional mildness (i.e., to skin and eyes) and skin-feel, have led to the widespread use of sucrose esters in personal care and dermatologic formulations.

Neutral in taste and odor, sucrose esters are also widely used in the food industry. They are stable at pH values between 4 and 8 and can be heated to temperatures up to 185 C. Sucrose ester suppliers, such as Sisterna, offer food-grade sucrose esters obtained by esterifying sucrose with edible fatty acids. Certain grades of sucrose esters can be certified “natural" (e.g., under the Ecocert program). Additionally, because they are based on natural and renewable raw materials and are easily biodegradable, sucrose esters support green marketing claims.

Sucrose Esters in Literature

For decades, the use of sucrose esters in topical bases (cosmetic, personal care and dermatologic preparations) has been described in both the scientific and technical literature. For example, the May 1977 meeting of the American Oil Chemists’ Society featured a presentation on the uses of fatty acid derivatives, including sucrose esters, in personal care cosmetics and toiletries. In addition, widely read industry publications have published review articles on sucrose ester emulsions.

Among the more recent patents claiming the uses of sucrose esters in topical formulations is U.S. Patent No. 6,132,746 (issued in October 2000 to Procter & Gamble), which teaches the use of lathering surfactants, defined to specifically include sucrose esters, in combination with other therapeutically beneficial active ingredients including: “anti-acne actives" (Col. 19, lines 21 - 36); “anti-wrinkle and anti-skin atrophy actives" (Col. 19, lines 37 - 46); “non-steroidal anti-inflammatory actives" (Col. 19, lines 47 - 60).

U.S. Patent No. 5,231,087 (assigned to Cellegy Pharmaceuticals), issued in July 1993, claims topical therapeutic application of C9-C18 esters and amides of monocarboxylic acids for treating ultraviolet (UV) radiation induced inflammatory and hyperpigmentation skin diseases in humans.

Claims 2 to 4 of the ’087 Patent claim methods for treating psoriasis, acne, rosacea, dermatitis, melasma and actinic keratoses. Esters and amides of monocarboxylic acids having nine to 18 carbon atoms are specifically defined to include sucrose myristate, sucrose laurate, sucrose caprate, sucrose palmitate, sucrose elaidate, sucrose oleate and sucrose linoleate.


Aeration is a process well-known in the food industry. The food chemistry literature is replete with references describing the use of sucrose esters in producing and stabilizing dairy-whipped emulsions (e.g., J. Coll. & Interface Sci. 2006;295(2):595-503). Sucrose esters have been used to produce foamed confectionaries, including whipping cream substitutes, as well as fillings for frozen deserts. 

Aeration has recently received increasing attention in the cosmetics industry. One approach for achieving aerated mousses for topical application is sucrose esters. Beyond the highly desirable aesthetics and mildness that can be achieved with sucrose esters in aearated mousse products, the focus on aeration—particularly with sucrose esters—may also be seen as part of the trend toward green chemistry using natural products and moving away from the use of certain propellants. 

U.S. Patent Application Publication 2008/0226792 (assigned to Unilever) is illustrative of the growing body of patent applications recognizing, and seeking to claim, aerated products based on sucrose esters.  Indeed, the abstract of the Unilever application describes the claimed invention as food and non-food products containing an aerated product comprised of water, liquid oils, a salt and a sugar ester.

Louis C. Paul, Esq., is the founder of Louis C. Paul & Associates, PLLC—a Manhattan intellectual property law firm specializing in product development law for cosmetic, topical pharmaceutical and nutraceutical products.

Paul Thau is an independent cosmetics professional and president of PaCar Tech.

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