Is Patenting Smells Patently Ridiculous? Or Does It Smell Like Money?

Futurist Thomas Frey of the DaVinci Institute suggests that the discoveries of Drs. Richard Axel and Linda B. Buck have opened the door for taste and smell patent applications to begin wafting into the PTO. Drs. Axel and Buck won the Nobel Prize for physiology or medicine for discovering how people can recognize and recall up to 10,000 smells. In the past, a smell could only be defined by its own chemical composition. With Drs. Axel and Bucks discovery scientists can now accurately describe the process by which the chemical composition of a smell is received by genes in the nose and translated into a recognized scent. Frey suggests that with such a system in place for defining smells, patents cannot be far behind.

The breakthrough discovery of Drs. Axel and Buck came from a 1991 project in which the two scientists working together discovered a family of over a thousand genes producing different odor sensing receptors in the nose. Apparently, there are a few hundred types of odor receptors each of which is capable of detecting a limited number of smells. So, when a person sniffs something, different molecules flowing over the receptors activate the receptors primed to respond to those molecules. The brain interprets a smell based on the receptors that have been activated.

Critics responding to the proposed patenting of smells suggest that some fundamental patent law is missing from Frey’s analysis. For example, do smells meet the usefulness requirement of patent law? And, how could a chocolate manufacturer use patents to build an IP wall around the category of chocolate flavoring when the smell of chocolate has been known and used for ages? Will wine producers patenting the “nose” of their finest wine find themselves in cross-licensing deals with other producers whose “nose” is a new and useful improvement on the original?

Prior to launching the DaVinci institute, Thomas Frey spent fifteen years working as a designer and engineer for IBM during which time he received 270 awardsfor creativity and innovation. He is also a member of the Triple Nine Society, a society for those with IQ’s above the 99.9 percentile. Is patenting smells patently absurd, or is Frey correct when he predicts, “The systems for owning smells will open a rich treasure trove of opportunity for those interested in capitalizing on it. Many people will correctly guess that this one smells like money.”