At its heart, green chemistry is about the use of less-hazardous substances in products to minimize the impact that chemicals will have on both public health and the environment. However, without strong trade secret and intellectual property protections, green chemistry legislation andregulation could discourage innovation and critical investments that lead to new chemistry discoveries and safer products.
We believe that any green chemistry program should provide sufficient protection of trade secrets andconfidential business information through commonly-accepted regulatory processes used throughout the country. Product formulas are trade secrets, and critical parts of a company’s intellectual property. They reveal the “recipe” of flagship brands that provide decades of market success for manufacturers. While HCPA member companies understand the public’s interest in obtaining useful ingredient information, this process requires careful balance with protecting trade secrets for a competitive market. Communication of seemingly isolated pieces of information about a product formula, including ingredient chemical names, concentrations, Chemical Abstract Service names and numbers, and physicochemical properties, provide key “clues” to a trained eye to unravel sophisticated formulary science in which a manufacturer made a significant investment to create.
Product formula disclosure will forever present a concern to consumer product manufacturers because of the real threat of competitive surveillance. Loss of intellectual property to competition in states prevents a manufacturer from obtaining confidentiality protection for that formula anywhere else in the world. This is very problematic for a manufacturer who intends to expand in other geographies as part of an overall global market strategy. The inability to protect formula information as confidential business information as a manufacturer enters a new market can result in a subsequent quick market entry of knock-off products from competitors. These competitors reap the economic benefit from marketing the innovation without investing the significant capital as the original manufacturer. This dynamic showcases the challenge that domestic manufacturers face in the global marketplace and the threat to loss of U.S. leadership in the manufacturing sector.
Importantly, manufacturers cannot always choose to patent their confidential product formulas, and instead must rely on trade secret protection. There is no legal requirement that requires the holder of a trade secret to seek patent protection in order to be able to maintain its property interest in the trade secret; accordingly, green chemistry regulations cannot require a patent filing in order to protect new discoveries of greener chemistries. Patents require disclosure of the confidential information in the patent application. While a patent, if granted , provides legal protection from competitors copying a manufacturer’s intellectual property, patents only offer protection in the country in which the patent is issued, are only issued for a limited period of time, and require enforcement action on the part of the manufacturer against potential infringement cases. Many manufacturers opt for trade secret protection rather than a patent, provided that the confidential information meets the trade secret eligibility criteria under the federal Uniform Trade Secrets Act.
If you’re concerned with these issues, contact us and learn how beneficial an HCPA membership could be.
