Creating something that has never been done before or finding a new solution for an existing problem is a feat in and of itself, but the work doesn’t stop there. The best ideas are worth nothing without the proper protections in place. Patenting an invention is a long and often expensive process, but those who stay the course are rewarded with a powerful legal tool and a strategic competitive advantage over future competition. Inventors are granted exclusive rights, including the ability to exclude others from making, using, and selling their invention for up to 20 years.

While the beauty sector sees less patent activity compared to industries like technology and pharmaceuticals, brands like Lashify have recently made headlines for bringing patent protections to the forefront of this nearly $500 billion industry. From skincare to haircare to cosmetics and fragrance, every category in the beauty industry is heavily reliant on marketing, but flashy branding and influencer marketing campaigns can only get a brand so far. In today’s oversaturated beauty market, innovation can be a crucial differentiating factor for discerning beauty consumers.

If you have a novel idea and you’re considering pursuing patent protection, it’s best to consult with a patent attorney. But if you’re not quite ready to take that next step, this guide will give you a glimpse into what the patent process could look like, based on insights from experienced patent attorneys.

Please note that this information is for general knowledge only and does not constitute legal advice.

The Basics of Patent Protection 

Patents are just one component of a broader intellectual property (IP) strategy. To effectively protect your brand from copycats, it’s crucial to identify which aspects of your product qualify for patent protection. In some cases, it might be best to keep some elements confidential as trade secrets. Other elements, such as names, logos, or slogans, are best safeguarded through trademarks.

For the United States Patent and Trademark Office (USPTO) to grant a patent, an invention must meet the criteria of novelty, nonobviousness, and usefulness. Beauty industry patents typically protect things like formulations, packaging, devices, and processes.

Utility patents, the most common type, cover novel processes, ingredients, or devices, while design patents protect unique packaging or product aesthetics. Utility patents protect the functionality of new beauty inventions, such as hair styling tools or skincare devices.

“A utility patent is going to be one of the most expensive forms of IP to get,” Elizabeth D. Ferrill, Partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, told BeautyMatter. “It's going to take longer to get and cost more money up front, but if you get it, it can be very beneficial.”

Utility patents typically cost more than design patents because they require a more detailed and complex application process that often includes a deeper, more comprehensive search. Even then, utility patent applications are almost always rejected initially, requiring lots of back-and-forth communication with the Patent Office to convince them of the patentability of the invention. Utility patents are generally seen as more beneficial than a design patent because they provide wider and longer protection for an invention's functionality, whereas design patents mainly cover the unique visual appearance of an invention, like an original bottle design or a unique applicator. Design patents have everything to do with a product’s look and feel, not its functionality.

When deciding between a utility or design patent, consider what makes your product different or more memorable than everything else on the market. If your product goes viral and other copycats start trying to dupe your product, how would they go about doing so?

“From the perspective of a potential imitator, determine which features are most likely to be copied, then focus on how to legally protect these key differentiators,” said Ferrill. “You want to focus on the one thing that is most recognizable.”

Patent vs. Trade Secret

Just because you can patent something doesn’t necessarily mean you should. Patents are granted in exchange for a public disclosure of the invention, making the invention's details accessible to everyone. Patents are essentially blueprints to recreate your invention, but the patent gives the owner the right to exclude others from doing so for up to 20 years. Some ideas are better kept under wraps, and in those cases, it may make more sense to keep them as a trade secret.

Trade secrets are a type of IP that isn’t granted by the USPTO or any other government authority. It’s a secret that’s held within your organization, and unlike patents, it has no terms, but it does have some legal protections. Obtaining these secrets through means such as theft, misrepresentation, violation of a confidentiality agreement, or espionage can lead to legal prosecution at both the state and federal levels.

Trade secrets, a no-cost form of intellectual property, are valuable to others who can’t legitimately obtain the information. But as Ferrill noted, “a trade secret is only as good as your ability to keep the secret.” 

So, how do you know whether to keep something a trade secret or obtain a patent? Naomi Birbach, Partner at Goodwin Procter LLP, said that the biggest consideration is whether or not your invention can be reverse-engineered. If a person buys your product and figures out how to recreate it on their own, trade secret protections don’t apply. It would only be considered trade secret misappropriation if they obtained the trade secret by improper means, like theft.

“If your invention is susceptible to reverse-engineering, that usually points in the direction of filing a patent,” said Birbach. “Whether a person copies your patented invention or comes up with it entirely on their own, it's all potentially patent infringement.” 

Instead of pursuing patents, beauty brands often opt to safeguard their product formulations as trade secrets, especially in the fragrance world. There are a few notable exceptions, like the SkinCeuticals C E Ferulic Vitamin C Serum, which was patented in 2005 and recently expired as of March 24, 2025, and K18, which has a patent on its peptide until 2034.

The Patent Process: Step-by-Step

Once you’ve decided to pursue a patent, keep in mind that time is of the essence. The U.S. Patent Office operates on a first-inventor-to-file system, which means that whichever inventor files the patent application first is generally granted that patent, regardless of when the invention was conceived or first built. 

 “There's no time to waste,” said Ferrill. “I know there's a lot of pressure on someone who's starting a business, but if your product is popular, a bigger company will come along and see that you don’t have protection, and decide to enter your market.”  

But before you hastily put together your patent application, you’ll want to do a patent search to see if someone has already beaten you to the punch. Google Patents is free to use, or you can hire a patent attorney to conduct a patent search for you. Look up all the words associated with your invention and take note of anything that appears even remotely similar. If your invention is covered under someone else’s patent, there’s a chance your application may get rejected by the Patent Office.

“Just because you think that something is new doesn't necessarily mean it's new,” said Ferrill. “It's important to know what the Patent Office calls the prior art, or the inventions that came before.”

Once you’re certain that your invention meets the criteria of novelty, nonobviousness, and usefulness, it’s time to consult a patent attorney. If you’re still working on your invention, your patent attorney might advise you to file a provisional patent application, which buys you a one-year head start to refine the invention before filing the formal or non-provisional application. The provisional patent application is a metaphorical stake in the ground that establishes your claim to the invention and its priority date.

Saina Shamilov, a trial lawyer and Partner at Fenwick & West LLP, advises filing for a patent as early as possible, and in some cases, even before officially launching the product. 

“If you have a good idea and you know it’s going to work, file a patent as quickly as possible to establish the earliest possible date of your invention,” she said. “As your product evolves, you can continue to tweak the application and make it better, but you can’t change the filing date.”

It’s worth it to use a patent attorney to help file your patent application because they are fluent in the specification and the language that the USPTO uses to determine if a patent can be granted. Word choice can make or break a patent, and this is especially true in both patent prosecution and any future litigation.

“It’s important to have a really great legal team that understands not only your business but also your industry. You want someone who really knows how to write these things and is able to give you the competitive advantage that you absolutely deserve and you’re entitled to,” said Shamilov. 

Lashify founder Sahara Lotti learned this lesson the hard way when her patents became the subject of a lawsuit against the International Trade Commission (ITC). A ruling in the U.S. Court of Appeals for the Federal Circuit upheld a previous ITC decision regarding Lashify's utility patent, which found that Lashify's products did not meet the "heat-fused" specification that its patent outlines. The outcome of this ruling means that Lashify can only pursue an import ban based on its design patents and not its utility patent. However, Lashify now has a utility patent that no longer includes that term.

“You don’t want to bring marketing language into the patent application,” Lotti told BeautyMatter. “I used to be a screenwriter, so I thought that the more detail you give and the more flowery the language, the better, but patents are the complete opposite. You want to keep it as broad as possible, and only start getting narrow when [the USPTO] starts rejecting you.” 

Lotti has since updated the language in her patent, avoiding the word “heat” altogether. She advised other founders and inventors to steer clear of any unusual words and refrain from using language that’s too specific. 

“A competitor can come in and change the shape of your invention from a square to a rectangle, and they technically wouldn’t be infringing,” Lotti warned. 

Rejections are part of the process. Lotti's initial patent application in 2016 faced repeated rejections from the USPTO and took four years to finally get approved. The rejections resulted in a stronger, more robust patent once granted because it had already been put through the ringer. 

Lotti credits the strength of her patents as one of the main reasons why she was awarded $34 million in a patent infringement case against a Chinese lash competitor in 2024.

“The courts were able to side with me because I had shown so many references and prior art in my patent application,” she said. “It shows that you've already overcome all of those rejections, so as much as it is frustrating, it actually helps you in litigation.”

Patent Costs and Timelines

Securing a patent can cost between $10,000 and $20,000, according to our sources, which includes both filing fees and attorney costs. The USPO fee structures also vary based on the size of the entity that’s filing the patent, with small businesses often qualifying for reduced fees. Patent approval can take two to four years from the initial filing date.

The time and money that it takes to secure a patent pales in comparison to what you can potentially get in return: up to 20 years of exclusivity and all the profits your product brings in. 

“Getting a patent is a bit like an insurance policy,” said Ferrill. “In the event that your product is not only successful, but someone else chooses to copy it or make something like it, you’re protected.”

It's a major investment, but also an asset. Once granted, a patent increases in value as the product and brand become more successful. Brands that can communicate this exclusivity to customers not only strengthen their market position but also justify premium pricing because there is nothing else like it available on the market. For founders who dream of one day selling their company to a conglomerate, patents make any business more attractive to potential investors and acquisition partners.

“It gives brands a competitive edge and deters others from copying their work,” said Shamilov. “When smaller companies are acquired, having legitimate, enforceable assets like this adds value that can be sold or used by the buyer.”

Global Considerations

Patent protection outside the US varies from country to country, and pursuing multiple global patent applications at the same time can get expensive quickly. Shamilov recommended focusing on countries where you anticipate the brand expanding to in the future and where potential competition requiring protection may arise. Lotti prioritized English-speaking countries, like Canada and the UK, and countries where products like hers are being made and manufactured, like China and Indonesia.

Some countries are stricter than others in terms of what they’re allowed to share about their invention before filing for a patent. For example, in the UK, in order to be eligible for patent protection, the new and inventive element of your invention has to be completely confidential. 

“The biggest mistake that new businesses can make in the context of patent protection is putting some element of their product out in the public domain,” Eloise Harding, Partner at Mishcon de Reya LLP, told BeautyMatter. “If it's not confidential, it generally will not be eligible for patent protection. Anyone that businesses are sharing their innovation with should be doing so under very strict terms of confidence, and if not, and the information gets out, it can actually mean that they aren't eligible for the patent protection that they would otherwise have been.”

The UK also offers something called design protection, which covers the shape and visual appearance of a product. Registered design rights require formal registration but provide longer-lasting protection (up to 25 years), while unregistered design rights are automatic but offer shorter protection (between three and 15 years – there are actually two types of unregistered design rights in the UK). The challenge in enforcing both registered and unregistered design rights in the UK is establishing that the design is novel and has individual character, without which you cannot prove infringement. For a lipstick case design to be enforceable, for example, it would need to be materially different from other products already in existence.  

Unlike with UK/European patents, if you disclose your design publicly, you have a one-year grace period from the date of disclosure to file a design application. It’s common for fashion brands to test the market and see how much demand there is for their product and whether it’s likely to become popular. The one-year grace period enables brands to decide whether or not it’s worth investing in registered design protection. In beauty, this can be applied to things like lipstick packaging, a new applicator for skincare, or makeup products.   

“If the product is a commercial flop, you don't want to spend the money on the design protection, so it’s great to have this one-year window to see how the market is going to respond,” said Harding.  "Even without registered design protection, brands that encounter copycats or other infringement may be able to enforce unregistered design rights, copyright, trademark rights, and/or claim for passing off in the UK."

Patents are the closest thing to putting a price tag (and insurance policy) on an idea, but if you do it right, it’s an asset that can grow in value alongside your business. Patents can be a powerful tool for founders and inventors, but the process is anything but linear, especially when you start considering pursuing patent protection in other countries. Consult with a patent attorney to figure out the best path forward.