Jacqueline Short
Dietary supplement use among Americans has become increasingly prevalent following the COVID-19 pandemic. Manufacturers of dietary supplements depend on patents for success in a competitive market. In order to be patent eligible, supplements cannot be too similar to the natural substances from which they derive. The United States Patent and Trademark Office outlines the markedly different characteristics test, which courts use to determine whether supplements are unique enough to receive patents. Yet the patent cases of two supplements, ChromaDex and Natural Alternatives, reveals significant confusion around the role of dosage and bioavailability of supplements under the markedly different characteristics analysis. This Article examines the markedly different characteristics analysis and evaluates its application to the ChromaDex and Natural Alternatives supplements. This Article ultimately recommends that the USPTO incorporate the ChromaDex and Natural Alternatives rulings into the Manual of Patent Examining Procedure and clarify the existence of a minimum dosage requirement.