Say a pill currently available to the public has 10 different chemicals in it. It is not currently patented. If a company were to take those chemicals and put them into a beverage, would it be novel enough to be patentable? Would the pill be prior art that would prevent a patent?
As with many things in IP law, "it depends."
1. New uses for known compounds/formulations are patented all the time.
2. A compound in solution is often not of the same structure as the dry crystalline/amorphous form of the compound (goes to novelty.non-obviousness). For example, the solvate of a compound could be a salt that has entirely different properties than the dry crystalline/amorphous form. Various other aspects of solution chemistry can come into play as well, which are generally not a consideration in a dry formulation.
3. The pH of the beverage solution could also have an impact on the structure and efficacy of the compounds (goes to novelty).
4. There could be disclosure in the prior art indicating that solvates of the compounds/formulation in question were unattainable (goes to non-obviousness).
5. The formulation in solution/suspension could be metabolized in an entirely different way than the dry form. E.g., dry compositions can be compounded into an extended release formulation. To my understanding, extended release is particularly difficult to obtain with a solution based formulation.
etc.
So as you can see, there are many factors that come into play when considering the patentability of a new form of an old formulation. For more information on the topic, you might want to read the Pfizer v. Apotex (patentability of salts) and the Takeda v. Alphapharm (patentability of chemical compounds post KSR) decisions.
