By Grace Murphy, J.D. Class of 2026
Prescription drugs have a reputation for making liberal use of the patent system. However, the medications picked up at the pharmacy are not the only patent-protected products in the local drugstore. Many of the lotions, serums, and face washes that line the aisles also make use of patent protection.
Unlike the pharmaceutical industry, the skincare industry is not as well known for its patenting practices. That is not to say that patented skin care products are rare. In fact, many aspects of skincare products are patentable. Patents can protect specific formulations of products, the manufacturing process, or the method of delivery. Skincare companies that seek patent protection do so for the same reason as pharmaceutical companies: to protect their innovation and recoup money invested in research and development. But not all skincare products are or can be patented. Companies’ decisions to or to not seek patent protection reveal nuances of both the patent system and the skincare industry.
A popular patent-protected skincare product is the Skinceuticals C E Ferulic serum. Skinceuticals patented a specific concentration of vitamin C, ferulic acid, and vitamin E at a specific pH that offered better results than comparable products. In March of 2025, the product’s patent protection finally expired. The patented product enjoyed many years as a bestselling, highly priced, vitamin C serum, but patenting was not without consequences. Patenting inevitably publishes the breakthrough formula, opening the door for competitors to learn how the product is made. As a result, other companies have been able to mimic elements of the formulation without running afoul of Skinceuticals’ patent rights. For example, Drunk Elephant’s C-Firma serum also uses vitamin C, ferulic acid, and vitamin E in the same concentration as the Skinceuticals’ product. The similarities between the two products made Drunk Elephant’s product extremely popular as a less expensive alternative for the Skinceuticals’ product. Unsurprisingly, these similarities also led L’Oreal, Skinceuticals’ parent company, to sue Drunk Elephant for infringing the patent underlying its bestselling vitamin C product. Despite two years of litigation, the ultimate question of infringement never reached the court. The parties presumably reached an adequate resolution amongst themselves and requested the court to dismiss the case prior to trial. Both products are still on the market today.
This case illustrates the benefits and drawbacks of patenting a breakthrough skincare product. On one hand, Skinceuticals could demand a high price due to its monopoly on the specific formulation and could pursue potential infringers for intruding into this monopoly. On the other hand, competitors like Drunk Elephant could closely mimic Skinceuticals’ formula based on instructions in the patent and sell their product at a lower price point. Pursuing alleged infringers also comes with risks. Invalidity of the asserted patents is a common defense to infringement, and it is not uncommon for patents asserted in patent infringement actions to be invalidated as a result of the proceeding.
Additionally, not all products are eligible to be patented. The patent system has inherent limitations. Among other restrictions on patentability, products that are not novel or are obvious combinations or improvements over existing innovations are not patent-eligible. Skincare products that make use of common ingredients will not be eligible for patent protection. Take, for example, “The Ordinary.” “The Ordinary” is known for its minimalist formulas with best sellers like “Niacinamide 10% + Zinc 1%” and “Hyaluronic Acid 2% + B5 (with Ceramides).” Both bestsellers make use of common skincare ingredients. However, the simplicity that has made these products popular also stands in the way of patent protection for many of its most popular products. Perhaps as the skincare field becomes more crowded, companies will increasingly pursue patents as a way to stand out and guard their territory from competitors with similar products. Nevertheless, patenting in the skincare industry is subject to the same limitations and considerations as patenting in any other field. Not all products will be eligible for patent protection, and, for those that are, companies will have to weigh whether the costs, both financial and in terms of publicizing research, outweigh the benefits.