Requirements Of A Recipe Patent
In order to trademark a recipe, the recipe cannot be obvious. It cannot be a mix of already existing food items. If a consumer can easily identify the ingredients of your product, it is unlikely that it will be eligible for a patent. You may be approved for a patent, however, if you create the recipe with a unique food process.
Because many new recipes simply involve mixing together ingredients that already exist, it is very difficult to get a patent on recipes. For this reason, many restaurants and food companies never even attempt to get a patent on their food products.
A recipe patent requires the following:
- A detailed description of the shape, ingredients, and overall look of your product.
- The final product must be non-obvious. This means that it should not be easy to determine the ingredients of the recipe.
Ip Tools That Do Not Protect Recipes
People might think of a recipe as they think of a work of art. After all, people often express themselves through their baking and cooking. However, a recipe is not the same as a poem or painting that someone could copyright.
As one New York Times article describes, a recipe is a factual list of ingredients and steps, not a creative expression. Because of this, people typically do not copyright recipes.
And in terms of patenting a recipe, a person can run into difficulties when proving it is novel and not obvious.
Conducting A Prior Art Search
The first and foremost step while registering for a Patent is to conduct a prior art search. In this step, we have to search in the Patent databases as well as in non- Patent literature whether any Patent in this field has been previously filed or not. This is done so that there is no infringement on the previous Patents that have been filed in this field before.
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How To Legally Protect A Recipe
Nowadays, distinctive recipes are considered top earners in the food and beverage industry, especially in restaurants. However, having exclusive rights to a recipe requires one to protect it legally. Here are some laws to ensure others don’t imitate your recipe.
- Patent law. Although it is rarely used, having a patent for your recipe is a sure way of protecting it. Provided one proves the novelty of the recipe, a patent is always guaranteed. The only downside is that it can be costly at times.
- Trade secrets law. A trade secret known to insiders gives any business a competitive edge against its peers. For example, making a recipe with insider knowledge requires signing a nondisclosure agreement between owners, chefs, and suppliers. The agreement ensures that no one will divulge what the recipe comprises.
- Trademark law. It protects companies’ names, slogans, and logos. Having a trademark for your recipe ensures that no one can use it. In addition, it helps consumers identify your brand.
- Copyright law. It protects recipes that have been published. Authors’ books are protected from photocopying and being republished without consent from the owners.
Intellectual Property Protection For Recipes
DRI: For the Defense
In todays world of celebrity chefs, craft cocktail mixologists, and experiential dining restaurants, unique culinary creations have become a valuable business asset. And, as with any other valuable business asset, commercial litigators will be tasked by their clients with protecting these assets. The question for commercial litigators will be, How?
In some respects, recipes should be tailor-made for intellectual property protection. New recipes are invented by highly educated and trained chefs marketed by restaurants under distinctive names such as the Big Mac or the Whopper described in flowery language in best-selling cookbooks and closely guarded by restaurants to protect a competitive advantage similar to the secret eleven herbs and spices at Kentucky Fried Chicken . In reality, though, establishing any intellectual property rights, much less protecting them in a recipe, is challenging. Indeed, stealing another chefs recipe is a time-honored tradition in the food service business.
Copyright Protection
Trade Secret Protection
In light of Li, it is necessary to be able to show why the process is novel. To do so, it is imperative to identify the actual process. It is not enough to allege the process is a trade secret without more context, explanation, or identification. Even then, the process must be sufficiently different from the processes used in publicly available recipes.
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How The Uspto Defines A Food Recipe
Before explaining the different types of intellectual property protections , its important to understand how the USPTO views and defines a recipe. After understanding this definition, we can match up a recipe against each type of IPP.
Generally, the USPTO defines something based on its basic components. So, the USPTO breaks a recipe down into 3 things: the ingredients themselves, the processes these ingredients undergo, and the resulting dish in relation to these ingredients.
Can You Publish Someone Elses Recipe
Publishing someone elses recipe without their permission or crediting can be considered copyright infringement. Remember, recipes are still protected, original works.
There is nothing preventing you from following the recipe, however, if you are going to publish another individuals recipe, make sure you have their permission first.
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How Does Patenting Work
Once a patent is registered, it gives its creator the legal rights to use the design, process, method, substance or device. A patent, like other forms of intellectual property, needs to be registered with IP Australia.
Getting a patent registered involves time and a comprehensive application process, where the item in question must meet all the requirements to qualify as a patent.
| ExampleJeremey invents a new machine that can be used to cook vegetables. As the creation is completely original, innovative and useful, there is a good chance his application to have his design patented will be successful. |
Considering Patenting Your Recipe
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Can I Copyright A Recipe
Copyright is an exclusive legal right that arises automatically on the creation of an original work and can be used to prevent others from using or commercially exploiting this work without permission. Copyright protects, amongst other things, literary creations, artistic works, original non-literary written work and the layout of published editions of written works, but does this IP right extend to recipes?
Unfortunately, under UK law, copyright protection does not encompass a collection of ingredients or a list of instructions . Therefore, following a recipe to produce a particular food or drink product would not infringe any copyright of the original author.
Some copyright protection may be provided in the particular literary expression used to describe the method steps of your recipe, however, this protection would not prevent others from publishing your recipe as long as it has been expressed in a different way.
General concepts or ideas cannot be protected under copyright either, and so producers of next years cronut would not be able to prevent other companies constructing and/or publishing recipes to make the same or a similar treat .
How Do Courts Decide If Info Is Or Remains A Trade Secret
In the US, several factors are used to evaluate whether information is or remains a trade secret.
Taking a holistic, or totality of the circumstances approach, courts will consider:
the extent to which the information is known outside of the business
the extent to which the information is known by employees and others involved in the business
the measures taken to guard the secrecy of the information
the value of the information to the business and to its competitors
the amount of effort or money expended in developing the information
the ease or difficulty with which the information could be properly acquired or duplicated by others.****
The food industry can experience particular challenges with these factors. This is because unlike high technology industries, everyone has some experience and knowledge of food and cooking packaged food items must include a statement of ingredients in order of predominance by weight there are typically many options for substantially similar food products on store shelves and it is normal for multiple suppliers to participate in the process of bringing a final food product to the consumer.
Thus, it may be difficult to establish a trade secret for a formulation or a recipe process, and if reasonable steps are not taken such protections could easily be lost. The following court cases illustrate the issue:
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Case : Trade Secret Pizza Dough Recipe :
This case raised the question of whether pizza dough and pizza sauce recipes garnered trade secret protection.
The party seeking protection testified that his family created their dough and sauce recipes in Sicily before they moved to the United States and that only family members were privy to the recipes. The business kept the recipes a secret by having immediate family members put the ingredients into packets and sealed them. An employee would later add water to make the sauce and the dough as needed.
The court found the recipes were trade secret primarily because the family took extensive efforts to keep the recipe secret. Only family members prepared the recipes and no one outside the family knew the recipes. Further, the dough and sauce recipes had organoleptic properties that when cooked up resulted in superior tasting products.
The combination of these factors established that the recipe would be valuable to a competitor and derived economic value from not being known.
Can I Patent My Food Recipe
Most often, a restaurant owner will seek patent protections for their recipes. Patenting a recipe makes sense in theory, because a patent protects a unique product and allows the inventor to license and control that recipe.
Patenting comes with the most benefits for a chef, but also a lot of hurdles. In order to get a recipe patented, you need to prove that your recipe has two things: novelty and non-obviousness.
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Can I Protect My Recipe With A Non
Yes, a Non-Compete Clause is another way to protect your intellectual property. A Non-Compete Clause can prevent former employees or contractors from engaging in activity that puts your business secrets at risk. Since they had access to vital inside information during the course of their employment with you, there is the risk of them disclosing this information to your competitors.
Non-Compete Clauses can extend by time or geographical limits , however, its vital to have them drafted by a legal professional. Non-Compete Clauses that have not been drafted carefully can be deemed too restrictive to be enforceable by courts, therefore, its crucial to have an expert help you out here!
Can I Trademark My Food Recipe
No, you cant trademark a recipe. Trademarks dont have anything to do with recipesa trademark protects your brand and image, which is distinct from the food itself.You can seek trademark protections for certain things related to the food, such as its packaging and design. In fact, successful restaurants will often trademark the layouts of their restaurants and the designs of their packaging so that nothing else infringes on their brand.
This is why no restaurant would be caught dead with the McDonalds M in their name, nor can any restaurant reproduce the design of Coldstones Strawberry Passion ice cream cake. This also affects how food is presented for example, the way a pretzel is twisted could be trademarked as part of the brand. However, when it comes to a recipe, trademarks just dont apply.
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How To Protect Recipes Copyright Or Know
It is rare, but not impossible for a recipe to be granted protection. A recipe is a combination of a list of ingredients and practical instructions and the result of a recipe can be the creation of an original dish. Authors of such recipes may feel frustrated when they see their recipes copied without their agreement nor any mention of them. However, the legal remedies against the copying of a recipe are limited.
Under French law, for a culinary creation to be protected by the French Intellectual Property Code, it needs to meet three requirements under copyright law. According to the terminology established by case law, the culinary creation needs to be an intellectual work , presented in some material form, and bear the imprint of the personality of its author .
Modern doctrine does not allow recipes to be protected, whether under the anglo-saxon copyright or the droit dauteur of civil law jurisdictions. However, case law has not always been consistent in this area.
For Jerome Banctel, consulting chef of Mama Shelter Group, the easiest way to protect ones culinary creation today is indeed to get it published: If we have a great idea, we hasten to broadcast it in order to prevent people from copying it. We immortalise the idea by disclosing information to the maximum. Protection by copyright or as know-how is granted on a case-by-case basis. Remember that a touch of originality will help you obtain protection more easily!
Can You Copyright A Recipe
Recipes are usually not protected by copyright due to the idea-expression dichotomy. The idea-expression dichotomy creates a dividing line between ideas, which are not protected by copyright law, and the expression of those ideas, which can be protected by copyright law.
There are rare times where the idea and the expression of the idea are so intertwined that there is only one way, or very few ways, to express the idea. When this is the case, that expression of the idea is not protected by copyright law. A recipes list of ingredients, or simple directions, is so intertwined with the idea of that recipe that there are very few ways to express this idea so, a simple list of ingredients or simple directions will not usually be protected by copyright.
Based on this reasoning, the United States Copyright Office Compendium, the Offices manual for examiners, states that a mere listing of ingredients or contents is not copyrightable, as lists are not protected by copyright law ). The Office has also stated that a simple set of directions is uncopyrightable.
In addition, courts have found that recipes are wholly factual and functional, and therefore uncopyrightable. As the Sixth Circuit described in Tomaydo-Tomahdo, LLC v. Vozary, the list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable. Furthermore, a recipes instructions, as functional directions, are statutorily excluded from copyright protection.
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Why Cant I Patent My Recipe
Broadly speaking, most recipes lack the necessary inventive step to be protected by patent protection. To apply for a patent, your invention must:
- satisfy the inventiveness test and
- be sufficiently novel.
If your recipe produces an edible product as a result of mixing or cooking ingredients, you are unlikely to be successful in applying for a patent. However, the good news is that this is not the end of the road for your banoffee pie business dream. There are other ways you can protect secret recipes.
What Is Intellectual Property
Intellectual property is something that has been created from the mind, such as a novel, painting, song composition, logo or poem. Another way to describe IP is an intangible asset, which is often extremely valuable to the success and unique placement of your business in an industry.
The four main types of intellectual property are:
The owner of intellectual property has exclusive rights to use it for commercial gain.
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What Are The Potential Issues
Patenting inventions can be a costly process, especially as the number of territories in which you require protection increases, so it is beneficial, particularly for start-up companies, to carry out a critical assessment of where their product or process will be sold. Alternatively, if their company does not intend to exploit the invention, it is important to determine where they are most likely to license the product/process.
As patent protection typically only lasts for 20 years from the date on which the application is filed, it is worth noting that upon expiration, the recipe, product or process can be freely used by other companies.
Whilst there are different options available for protecting the delectable creations developed by food and drink manufacturers, the type of protection best suited to these products can depend on the product itself and, of course, the commercial strategy of the business.