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.
Are recipes patentable subject matter? The section of the statute that governs patent eligibility from a subject matter standpoint is 35 U. 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. Both can be protected i. So it is typically most helpful to seek understanding of what is NOT useful.
Something is not useful if it does not work; it is wholly inoperative. If the invention works at all, no matter how crude, the invention is useful. The first is where how the invention will be used is not apparent from the description, which can occur when the patent application fails to identify any specific and substantial utility for the invention or fails to disclose enough information about the invention to make its usefulness apparent.
These types of utility rejections are fairly rare though because utility does not need to be explicitly disclosed, it can be implicit or inherent in what is disclosed. The second type of deficiency arises in the rare instance where an assertion of utility for the invention made by an applicant is not credible i.
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.
Novelty is an issue that comes up under 35 U. Now I am going to provide an over simplification of Section , but conceptually what the Patent Examiner will seek to determine is whether the invention already exists. If the invention exists in the prior art you cannot obtain a patent.
Determining what is prior art unfortunately requires a Masters level understanding of patent law. If the recipe can be found in the prior art identically you cannot obtain a patent. Section and novelty is about exact identity, and this is not any kind of oversimplification.
If you can articulate any difference in what you claim as your invention then you have overcome a rejection. This is why if you are willing to narrowly limit the definition of the claimed invention the possibility of obtaining a patent goes way up even if there is a lot of similar prior art.
Recipes can be novel, although it does frequently stretch the imagination to think that a particular recipe has never been contemplated, described, used or sold by anyone anywhere. Beyond the novelty question of exact identity you must consider that what makes your invention unique and how your invention can be distinguished over the totality of the prior art.
This is required because when a Patent Examiner deals with issues of obviousness i. There is more to it than just finding every piece and part, because on some level all inventions are made up of known pieces, parts and functionality.
Teleflex nearly 5 years ago. Unfortunately, now the obviousness test is subjective and much more difficult to get your arms around. What has transpired over the years since the decision in KSR is an evolving law of obviousness. If a Patent Examiner can find each and every element of your invention in the prior art you should anticipate receiving an obviousness rejection, frequently a rather conclusory obviousness rejection that identifies each element and concludes that someone of skill in the art would have known to combine the elements.
There are ways around such obviousness rejections, but when the invention is a recipe will the patent applicant be able to convince an Patent Examiner that it would not have been within the knowledge of someone to combine this ingredient with that ingredient? Is it really not obvious to try the combination? Likely no. That is why you absolutely need to have some peculiarity to have any hope to get your recipe or food item patented.
One way to overcome an obviousness rejection and persuade a skeptical Patent Examiner is to demonstrate that there are certain aspects of an invention that are counter-intuitive.
So if you are going to try and patent a recipe ask yourself are there any process steps that are unique, even bizarre? Things that are counter-intuitive or contra-indicated can go a long way toward helping establish a patentable invention, as do solutions to vexing problems.
Here are a couple recipe related patents to give you an idea of what you might be able to protect:. Fat and egg yolk substitute — Fats and eggs produce desirable taste and sensory qualities in the baked goods, but also contribute much fat and cholesterol to the baked items.
This substitute is a particular composition that is claimed to produce a desirable taste and provide desirable sensory qualities. This recipe, therefore, provides a solution to a particular problem. Notice the very specific ratios of ingredients. Nut butter and jelly food slice — This invention includes a first and a second layer of jelly disposed in contacting relationship with each other. The first and second layers of jelly cooperate to define a hollow region therebetween. A volume of nut butter is disposed within the hollow region such that the volume of nut butter is encapsulated between the first and second layers of jelly.
Notice that there is a structural component to the resulting composition and is not simply protecting peanut butter and jelly. Process for preparing battered foods — First I want you to notice that this invention defines a commercial process, not a process that would occur in your home kitchen at least not typically.
Commercial processes for preparing foods are among those that are the most frequently patented process because there are a great many steps between making and it winding up fresh on the store shelves and ultimately in your home.
The process produces a fully cooked food product coated with par-fry batter and includes the steps of: providing a quantity of raw food product; providing a conveying means to convey the raw food product through the various steps of the present invention; steam and heat-cooking the raw food product; chilling the food after the step of steam and heat-cooking, which chilling step both chills the product so that it does not continue to cook, and cools the product before it enters the following battering step; battering the food; par-frying the battered food; and lastly, and freezing the food for shipment.
Sealed crustless sandwich — This patent is a favorite of mine because on one level it covers a peanut butter and jelly sandwich. There is, of course, more. This particular peanut butter and jelly sandwich provides an outer crust which can be stored for long periods of time without the central filling leaking. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings therebetween.
Notice there are structural aspects to the sandwich, namely the crimped edge, and there are aspects that address sandwich leaking and storing for prolonged periods. Process for making dough products — This invention provides a dough product which can be frozen and then unfrozen and cooked without the associated freezer taste.
Enter this invention, which addresses the problem. The process by which the improved dough product of the present invention is produced includes the steps of providing a dough, applying shortening flakes to at least one side of the dough, coating a light batter over the dough having the shortening flakes applied to it, heating the resulting batter-coated dough to first set the batter and then subsequently melt the flakes to form pinholes or air cells in the batter and at the surface of the dough, and then cooling the resulting product.
The process is applicable to any dough product which is desired to have a light, flaky, crispy texture. To obtain a patent for a recipe, you also need to demonstrate the combination of ingredients or the method of combining them produced a result that would not otherwise be obvious.
Most individual recipe creators find it difficult, if not impossible, to meet this burden. Conduct a search of previous patent disclosures. A patent attorney or professional search firm can help you with this process, or you can access resources for patent searching available through the U.
If someone else previously disclosed your recipe, you cannot patent it. Because there is an additional fee for applications submitted by mail, most patent applicants choose to apply online. Register for the website by creating a user account if you do not already have one. There are three types of patents: utility, design, and plant patents. Most patents, including those for recipes, fall under the utility patent category. You also need to determine whether you want to file a provisional patent or instead apply right away for a nonprovisional patent.
You do not submit an oath or declaration with a provisional patent application , but the application allows you to use the phrase "patent pending. The EFS walks applicants through the process. If so, you should consider also applying for a design patent. Finally, if your recipe might require international protection, consider applying for a global patent as well.
Filing patent paperwork can feel like an overwhelming task. However, there are many patent lawyers who specialize in filling out all of the required paperwork required by the USPTO. These papers are submitted to the patent office electronically regardless of whether you file them or have a patent attorney do it for you. If your patent application is rejected, you will have the opportunity to appeal that decision or make amendments suggested by the patent office.
Then, you can resubmit your patent application for a second review. Patenting a recipe can often be a confusing and complicated process, especially if you do not understand the criteria for patenting food compositions. The following five steps relate that process:. Trade secrets are a good alternative to patents.
However, when your business grows into the likes of Coke or KFC, your trade secret should be protected through the appropriate channels.
You should identify what secrets need protection and then develop a program or policy to keep them safe.
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