Can I Patent A Food Recipe?
By Mark Levy
Since just about everyone has a favorite food dish, people often ask me if their secret recipes can be patented.
The answer is yes, they can. But like anything else that comes out of our heads, it also depends. Preparing patent applications on food recipes that will have a strong chance of succeeding can be a little tricky. No matter how tasty the dish or how much people rave about it, your recipe must still meet the basic conditions of patentability all other inventions must meet: The recipe must be useful, novel and non-obvious.
According to the U.S. Patent and Trademark Office, food recipe patents fall under Patent Class 426 - Food Or Edible Material “intended to be consumed by human beings or lower animals in whole or part via the oral cavity.”
So whether your recipe is for infants, deep sea divers or zoo animals, as long as it’s intended for making a nutritional (as opposed to medicinal) composition to be eaten by people or pets, then it passes the first hurdle of being a food or edible material.
WHAT CAN BE PATENTED
Following are the two primary categories of food patents. While patents can be obtained in either category, almost all food patents comprise both:
1) Composition of matter
Like chemical compounds, food recipes are technically compositions - that is, methods of combining certain ingredients to make something different. Thus the many hundreds or even thousands of U.S. patents on food recipes in reality are new, useful and non-obvious compositions of matter.
Let’s say you have a new recipe for hot cocoa. If you're using some ingredients that have never been combined before, or the order of combining them is new, and it's not obvious to do so, then it's possible to get a composition of matter patent on that hot cocoa recipe. So in preparing your patent application for that recipe, you would ultimately be listing the ingredients and their proportional ranges - such as one part sugar, two parts cocoa and between four and five parts water. While that certainly describes a recipe, unless it has something really inspired about it like mixing the ingredients in zero gravity for unexpected results, it isn’t patentable.
2) Process for making the product
If part of making a food product from your recipe is heating it up or cooking it, then that step is a process. And if the method you use to cook your recipe ingredients - or the precise order in which you add foods together is new, novel and not obvious - then that process is essential to the patent.
Other processes that might make your recipe patentable include (but are not limited to): heating, frying, sauteing, poaching, baking, bottling, canning, aging, separating, blanching, stirring, grinding, whipping, mixing, chilling, freezing, melting, dehydrating, soaking, cutting, layering, stamping, molding, smoking and grilling.
TYPES OF RECIPE PATENTS - WHAT HAS WORKED
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 food’s shelf life with additives. Yet other patented recipes, such as chewable tablets for astronauts (US Patent 6,149,939) and dried food for arthritic pets (6,596,303), 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 (5,466,479) and sugarless bakery goods (5,804,242)
Microwavable: Sponge cake that can rise when microwaved (6,410,074)
Texture: Ingredient replacing egg whites to reduce toughness of batter coatings (6,288,179)
Moisture protection: Preventing a cream filling from making its outer bread layer soggy (5,145,699);
Shelf life: Single-dough cookies that store well (4,344,969)
Smoothness: Cooking process that improves mayonnaise (6,579,558)
Flavoring: Additive that improves chocolate flavor in baked goods (3,733,209)
Shaping: Controlling cookie geometry (5,374,440)
Convenience: Toaster cookies (6,093,437); ready-to-bake dough (5,560,946)
Appearance: Confections that swim in a carbonated beverage (6,319,535)
Special diets: Diabetic nutritionals (6,248,375)
Combinations: Storing peanut butter and jelly in the same container (3,117,871)
I highly recommend you look at some of those for a sense of patentable recipes and to see how the inventors kept their patent claims broad, a topic I discuss next.
MAKING FOR A STRONG RECIPE PATENT
The more novel and non-obvious the idea, of course, the stronger the patent application. That goes equally for recipe patents as well as all other inventions. If you come up with a totally new sugarless confection, or dry-rub marinade that never existed before, or a substitute ingredient that generates unexpected results, those would tend to become strong patents.
Another thing is you want to write your patent claims so that your parameters - ingredients, temperatures, cooking times - are as broad as possible. This will also help reduce the potential of your competition writing around your claims with small variations.
So if you're cooking a particular solution, then you want to say in your detailed specification and in your claims, “heated between a temperature of X and Y.” If you're listing quantities, also make those a range. For example, use wording like “between 1 and 1.5 parts water,” and “approximately 2 parts sugar.” You don't want to claim an exact amount that someone could modify only slightly to avoid infringing your recipe.
Common Errors To Avoid
The most common error people make preparing a food recipe patent application is missing the non-obviousness requirement. The test is, would your recipe be obvious to someone skilled in the art of cooking? The answer must be no. For example, if you merely take food items off the shelf and mix them without doing anything special to the process, then your invention does not reach the level of non-obviousness required for patentability.
Also, people fail to think of substitute ingredients that may be equivalent to the ones they're disclosing and thereby make their ingredients too narrow. Sure, sugar works great, but so might honey, corn syrup or molasses. If that’s the case, just say ‘sweetener’ when describing that ingredient. Does your recipe require pecans? If walnuts or almonds might work, then just say nuts.
Remember The Basics
Above all, in your excitement to patent your recipe, don't forget the basics of patent law. For example, people will often try to patent recipes from their ancestors. You can't do that for a couple of reasons. First, a patent can only go to the inventor, meaning you can’t patent your Grandma Frannie’s sugar cookie recipe. Second, if that’s been in your Grandma’s family, it implies the recipe’s been long disclosed. As we all know, upon any public disclosure inventors get only 365 days to submit a patent application on the idea.
Further, say you bake the world’s greatest blueberry pie and take it to a church function. Even if you don’t divulge the ingredients, is serving that pie a public disclosure? The answer is yes. When a composition is made available even when the ingredients aren't disclosed, that is public disclosure.
Great recipes are like belly buttons - everybody has one. Coming up with a new food, significant improvement, or uniquely new way to make it, is a challenge. But don’t let that stop you. Many are the inventors with great recipe ideas who never filed a patent application, and are later devastated to see their ideas for sale by others.
Not only may your food recipe be patentable, it may be the best thing since, well, sliced bread.
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