Pros & Cons Of Patents
Perhaps the most deterring factor for people interested in patenting a recipe is that you need to have considerable resources available to uphold and defend your patent from infringement typically, only large companies have the ability to do this. So, unless you’re a chain amongst the size of McDonalds, you should probably consider other alternatives
Requirements For Food Patents
The USPTO classifies food innovations under Class 426, which covers “products and compositions in any physical form which are intended to be consumed by human being or lower animals in whole or part via the oral cavity.” This description includes recipes, certain kinds of food packaging, food processing, and any other types of products or compositions” that otherwise meet the requirements of a utility patent, described more fully below.
The key to securing a utility patent for food and food-related innovations is that your proposed process, method, or recipe must be novel and nonobvious. The originality of a food composition means that it must be new, with some kind of characteristic or component that makes it different from everything that has come before it.
As an example, simply adding an ingredient not often seen on a hamburger, such as a fried egg, likely won’t be worthy of patent protection. In 2009, however, Mark Murray did manage to secure a patent for his Hamdog bun, a combination hamburger and hot dog bread bun,” designed to hold a hamburger patty with a hot dog wedged through its center. How’s that for novel and nonobvious?
A proposed food innovation must also have some utility to qualify for a patent, which means that the invention must be useful in some way. You might be questioning the utility of the Hamdog bun right now, but rest assured the USPTO saw its purpose and approved.
Your Recipe Must Be Nonobvious
To patent your recipe, you will have to show the patent office that your recipe was not obvious at the time you file your patent application. Said differently, if your recipe is obvious, such as if you were adding more strawberries to strawberry cheesecake, the patent examiner will say that it could have been thought of by anyone and therefore he will not grant your patent application.
When making the determination of whether a recipe is nonobvious, the recipe is examined by using a standard of an ordinary person in the field of the invention. For recipes, this is a skilled cook having ordinary skills in the field of the recipe. Adding one ingredient, such as cinnamon to cheesecake is usually never enough to make a recipe nonobvious because a cook preparing our hypothetical cheesecake could have easily thought of it.
The same goes for adding more sugar to cake to make it sweeter. Its unlikely that the patent examiner would grant a patent based on this because its obvious to a skilled cook that adding more sugar makes a cake sweeter.
Your recipe has to have something unexpected added to it. The more different ingredients you add, the more likely youll be able to patent your recipe because it makes it less obvious to a skilled cook.
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How Do You Create An Original Recipe
My opinion would lie somewhere in the middle, while I may not necessarily agree that adapting a recipe by swapping out a few ingredients makes it totally ‘brand new’, I also understand that it’s hard to make a dish 100% original. If creating original recipes in your kitchen is something you’re interested in, but afraid to do, the most important thing, as with anything in this great culinary world, is to START SIMPLE. I wouldn’t recommend popping by your local grocery store and picking up, oh, say some pork hock, an orange, eggplant, cayenne pepper and some ranch dressing, then getting home and thinking to yourself: ‘Now, what should I do with this?’ That probably won’t end very well…
In my opinion, there are five fundamental things that really help a chef-at-home get a great start creating original recipes.
Tips And Tricks For Protecting Your Recipes
5 Min Read4.12.2019By Jennifer Wang
A hot new restaurant launches, and everyone is raving about that one special dish. Maybe its a new technique for crafting the creamiest macaroni and cheese or the fluffiest pizza dough. Perhaps its even grandmas gooey chocolate-chip-cookie recipe. The restaurant rides the wave of success for a few months, and then disaster falls. A formerly trusted chef absconds with the recipe and opens a competing restaurant across town. Or, an adversary reverse engineers the product and starts selling it in supermarkets.
What could these restaurant operators have done to better protect their most valuable asset?
Unfortunately, recipes are infamously challenging to protect. Many traditional methods for protecting other forms of intellectual property, like a technological innovation or clothing design, fall short. Here, we take a look at trademark, copyright, patent, and trade secret law, and evaluate the drawbacks and benefits of each for protecting recipes.
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Can You Patent A Trade Secret
Patents and trade secrets are two different things. A patent gives you specific legal protection in the form of a monopoly for your invention for several years. In exchange, you have to register your secret with a government agency, which voids its secrecy and puts your work in the public domain.
A trade secret, on the other hand, requires no registration process, and its protection can last indefinitely. However, trade secrets are vulnerable to reverse engineering and internal leaks. Once a trade secret is made known, anyone can copy it without repercussion.
Because trade secrets are so vulnerable, we typically advise our clients to file a patent instead. However, theres not a one-size-fits-all solution, and what we recommend will depend on your unique circumstances.
We encourage you to get in touch with The Patent Professor® for a complimentary consultation. Our board-certified firm is well-equipped to see you through the patent application process from start to finish.
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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You Must Disclose Details
Think of this requirement as akin to sharing grandmas secret recipe for chocolate chip cookies. You have to disclose all of your ingredients and processes related to your idea. This means that anyone viewing your patent would be able to duplicate your invention without undue experimentation.
Details are more than just specifying tools or ratios. Youll have to get incredibly scientific and disclose everything about your idea in order to demonstrate its uniqueness and originality. However, theres a delicate balance between sharing enough information to secure a patent and sharing too much that someone can copy and alter your idea to get around the patent.
To protect your idea, its imperative that you work with an expert IP lawyer like The Patent Professor.®
Can A Recipe Be Patented
Determining whether something is patentable requires analysis of several different patentability requirements:
If the answer to all of these questions is yes then you have something that can be patented, provided of course you need to describe the invention in a patent application to satisfy the disclosure and description requirements of U.S. patent law.
1. Are recipes patentable subject matter?
The section of the statute that governs patent eligibility from a subject matter standpoint is 35 U.S.C. 101, which says:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Recipes are indeed patentable subject matter and protectable either by defining a new and useful process or as a composition of matter. For example, the resulting secret sauce is a composition of matter, while the steps to made the secret sauce are a process. Both can be protected if the other patentability requirements are satisfied.
2. Are recipes useful?
Recipes easily satisfy the utility requirement.
3. Are recipes novel?
This is where it starts to get more difficult for the individual who wants to patent a recipe, although this is not going to be the primary hurdle to patentability for a recipe.
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Types Of Recipe Patents
For some two hundred years, people in the U.S. have been patenting recipes. As you might expect, many food patents granted over the years tended to cover large-scale food production – such as mass producing cereal or cheese, or extending a foods shelf life with additives. Yet other patented recipes, such as chewable tablets for astronauts and dried food for arthritic pets , have a narrow audience.While not a complete list, the following is intended to demonstrate the wide range of types of recipes that have earned U.S. patent protection:
Reduced calorie: A surge of these appeared in the 1980s and continue with many hundreds of recipes for things like fat replacements and sugarless bakery goods
Microwavable: Sponge cake that can rise when microwaved
Texture: Ingredient replacing egg whites to reduce toughness of batter coatings
Moisture protection: Preventing a cream filling from making its outer bread layer soggy
Shelf life: Single-dough cookies that store well
Smoothness: Cooking process that improves mayonnaise
Flavoring: Additive that improves chocolate flavor in baked goods
Shaping: Controlling cookie geometry
Convenience: Toaster cookies ready-to-bake dough
Appearance: Confections that swim in a carbonated beverage
Special diets: Diabetic nutritionals
Combinations: Storing peanut butter and jelly in the same container
Are You Looking For An Advertising Boom
One important reason to obtain a patent is for advertising purposes. Once a patent is applied for you can immediately use the coveted term patent pending in your advertising. If a patent issues you can also advertise try my patented X, where represents whatever it is that you patented. The public at large knows very little about patent law, but most recognize that to get a patent means something special . If you are looking for this kind of reward from the fruits of your patent labors, then trying for a recipe patent could be well worth your time and money, particularly if you are a restaurant owner. Even if you dont necessarily think you have a good chance to ultimately get a patent filing that patent application so you can say: try our patent pending world famous Maragritas!
Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people in IP by Managing IP Magazine, in both 2014 and 2019. From 2017-2020, Mr. Quinn has also been recognized by IAM Magazine as one of the top 300 IP strategists in the world, and in 2021 he was recognized by IAM in their inaugural Strategy 300 Global Leaders list.
Mr. Quinn is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.
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Can I Patent My Recipe
One of the most common questions we receive is whether a recipe can receive patent protection. As with most legal questions, the answer falls in a gray area of It depends! The technically correct answer is Yes, your recipe could be patented! However, the more accurate answer includes a caveat: Your recipe may be patentable, but it is highly unlikely.
Recipes typical fall within patent-eligible statutory categories, since a final food product is a composition of matter, and steps to create the food product represent a process. In the grand scheme of patentability, the recipe passes the first hurdle. However, to be patentable, the recipe must also be newas in, no one has ever performed the steps and/or formed the product beforeas well as nonobvious. The nonobvious threshold is often the death of a recipe patent.
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 Can I Protect My Food Recipe As Intellectual Property
Everybody loves food, except maybe the United States Patent and Trademark Office. Restaurateurs and chefs have a notoriously hard time trying to patent their recipes, and most patent filings dont result in securing successful legal protections.
Of course, the USPTO doesnt actually hate food rather, recipes simply dont fall under the definition of a patent, copyright, or trademark. However, there are still ways to safeguard your intellectual property outside of getting USPTO or Copyright protections. Lets demystify the patent protections process and learn how to keep your recipes safe.
The Alternative: Trade Secrets
Labeling something a trade secret is a common safety measure taken by businesses. Some examples of trade secrets include Coca-Cola’s Coke recipe as well as KFC’s fried chicken batter. According to Steve O’Donnell, an intellectual property lawyer in Lancaster, PA, the definition of a trade secret is “something not generally known that gives the business some advantage over competitors.” Since most recipes are simply variations on a previous incarnation of a dish, and since a recipe usually doesn’t produce something totally unexpected, protecting your best recipes as trade secrets is an ideal alternative to the patenting process.
When you’re the chef of a small business, protecting a trade secret is as easy as never telling anyone your recipe. However, when your operation is larger or if you’re looking to franchise or market a food product, the steps you must take to protect your trade secret become more complex, and therefore more expensive.
“Many employees are required to sign some confidentiality agreement when they’re hired, stating that they know they can’t divulge any secrets they learn during their employment,” says O’Donnell. “If that employee then quits and tries to use that secret information, they could be hit with an injunction and possibly monetary damages.”
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Is The Recipe Useful
Most applicants have no trouble with this requirement because all foods are helpful.
So, its pretty easy to demonstrate the importance of a food recipe.
However, this should not be a leeway to not taking this qualification seriously.
However, obvious as its benefits may seem, its still essential to state them in the application process.
We advise that you begin with the windfalls unique to your recipe to enhance your chances of approval.
Is Your Recipe Useful
Recipes must be useful to gain a patent. A useful recipe is one that works and is wholly operative. That being said, something is useful if it works at all, regardless of whether it is crude.
There are two types of deficiencies that are important to understand. One relates to how the invention will be used is not apparent from the description provided. The other relates to when an assertion is made regarding the inventions utility by an applicant who is not credible. Both are extremely rare, but important to keep in mind.
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Considering Patenting Your Recipe
Criteria For A Patentable Idea
In order for a recipe to be patentable, it has to fulfil two main criteria:
The first criteria, novelty, is generally easily determined as your recipe will either be unique or it will have been described before in a previous publication.
The second criteria, known as inventive step, is a little harder to determine, and is generally more subjective. For example, even if your recipe is new, if you have simply replaced one ingredient for another and the new ingredient has known properties, then if your new recipe only differs by expressing that known property, it could be considered obvious to try and the resulting recipe could be considered to lack inventive step.
On the other hand, if your new recipe does involve one or more new technical effects, and there are at least arguments that these effects would not have been obviously achieved by the addition of, for example, new ingredients, new concentrations of ingredients or processing steps, then your recipe may be patentable.
Here are a couple of examples of patents granted for what are effectively recipes to give you an idea of what you might be able to protect.
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