From Plants to Patents

Recipe Patents 1

Harvesting your recipe's intellectual property. 

By Alyssa Holtslander, Jessica Marks and Kristi McIntyre

When you hear the term patent, cell phones and pharmaceuticals might come to mind, but what about recipes? Can a recipe be patented? Under U.S. patent law, any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” may receive a patent.

The ingredients and final product can be described as a composition of matter or a product of manufacture. The instructions for the recipe can be considered a process. So, yes, recipes are eligible for patents.

The biggest hurdle to patenting a recipe is usually convincing the United States Patent and Trademark Office that the idea is new and not obvious. Both are requirements for patentability. The office will not issue a patent for an idea that it deems to be an obvious improvement of a known product or an obvious combination of two or more known products. Admittedly, in the context of recipes, this can be quite difficult.

Most recipes, especially those passed down in your family over the years, are unlikely to be patentable. Even if your recipe contains an unusual ingredient, the patent office will probably find some evidence that someone else used at least a similar recipe before or that the result was predictable. For example, say you have famous chocolate chip cookies and the secret ingredient is cayenne peppers. Though unusual, the patent office will likely find the resulting spicy cookie was predictable and thus not patentable.

But patenting a recipe can be and has been done! If you’re savvy enough (and innovative enough) to capitalize on this unique opportunity, you’ll reap the benefits of exclusivity, as well as the option to license your rights.  

What’s Unique?

An indication that your recipe may be patentable is if it has a surprising result. For example, perhaps your chocolate chip cookies can be frozen and baked without thawing first, like the dough recipe covered by U.S. Patent No. 5,560,946 for “Ready-to-Bake Doughs.” Unexpected advantages over other known recipes are evidence that yours is novel.

Recipe Patents 2Patents are more often granted on the special methods used to make a new product rather than the product itself. For example, a process for making crispy meat chips – an alternative to potato chips for those on a no-carb diet – is covered by U.S. Patent No. 7,662,422.

U.S. Patent No. 8,460,726 covers a method of making crackers with live probiotics. And a method for producing a tea from red grapes is covered by U.S. Patent No. 8,524,293.

All aspects of making your recipe and bringing it to market should be considered for patentability. As any large-scale food producer knows, many innovative processes are needed to maintain uniform quality and keep food shelf-stable and appetizing. For example, in developing your cookie for mass production, you may discover that certain additives keep the cookies from spreading out too much. Such a “method for controlling cookie geometry” is covered by U.S. Patent No. 5,374,440. Or, as in U.S. Patent No. 4,344,969, you may discover an ingredient that maintains the crisp and chewy texture of the cookie.

You may find a filling that prevents the cookie from becoming soggy, like the cream filling covered by U.S. Patent No. 5,145,699. These novel processes may further be advantageously used with a new innovative machine such as an “Automatic Bread Baking Machine” covered by U.S. Patent No. 4,538,509. Considering the innovative components and advantageous steps of making your product may lead to several patents. Be thoughtful and creative in thinking of all the ways to describe your recipe and its uniqueness.

Protecting Your Creations

Obtaining a patent can be a lengthy and costly process, so before pursuing a patent on aspects of your recipe, do a little homework. Be prepared to explain how your product is unique or how it solves a problem that others have been unable to solve. Consider whether a certain step or ingredient provides a benefit that others in the field would have found surprising. Research other products in the field to make sure that what you propose truly has not been done before or would not have been obvious to do. And be ready to articulate how your product improves on what was already known.

Before pursuing patent protection, consider the more global business considerations associated with a patent. For example, when filing a patent application, an inventor is required to disclose the invention in such detail that others can copy and use it without undue experimentation. When a patent is granted, it offers protection for 20 years from when the application was filed. After that, everyone is free to copy and use your recipe.

Furthermore, a patent may contain a lengthy disclosure of all of the details of your process, but the patent office may only grant protection on a few aspects of your recipe. This may allow others to use what you disclosed to design around the small part of your invention that is ultimately protected. An experienced patent attorney should be able to advise on many of these concerns.

For example, he or she may recommend filing the application with a non-publication request so that the information is only made public if a patent is granted. The attorney should also be able to draft claims that cover the parts of your invention that are the most difficult for competitors to design around. And with the right claims, a patent can be an invaluable tool in protecting your recipe.

Jessica Marks is an associate at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. She focuses her practice on patent prosecution, portfolio strategy, and litigation of a variety of patents, including those covering innovative food technologies. She can be reached at jessica.marks@finnegan.com.

Alyssa Holtslander is an associate at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. She focuses her practice on a broad range of patent matters, including post-grant proceedings, due diligence investigations, freedom-to-operate opinions, and litigations, including those related to innovative production equipment. She can be reached at alyssa.holtslander@finnegan.com.

Kristi McIntyre is an associate at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. She focuses her practice on litigation and post-grant proceedings, including Hatch-Waxman act litigations for pharmaceutical products. She can be reached at kristi.mcintyre@finnegan.com.

Check out our latest Edition!

 

Video

Contact Us

Food and Drink Magazine
150 N. Michigan Ave., Suite 900
Chicago, IL 60601

  312.676.1100
  312.676.1101

Click here for a full list of contacts.

Latest Edition

Spread The Love

Back To Top