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The Law of Recipes: Are Recipes Patentable?

Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
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Posted: Feb 10, 2012 @ 6:04 pm
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One of the most common questions I receive, dating back to the very beginning of IPWatchdog.com, is whether recipes can be protected by any form of intellectual property.  Typically the question presents specifically by a reader asking whether a recipe can be patented, or how once can patent a recipe.

In most cases the typical recipe for a “killer Margarita” or “the best barbeque sauce ever” will not be patentable because they won’t be unique enough, typically failing on the non-obviousness requirement.  Of course,  the only way to know for sure is to understand how the Patent Office reaches its conclusions relating to what can and cannot be patented.  It is certainly possible to obtain a patent on a recipe or food item if there is a unique aspect, perhaps if there is something counter-intuitive or a problem (such as self live or freshness) is being addressed.  The trick will be identifying a uniqueness that is not something one would typically think to try.

Can a Recipe Be Patented?

Determining whether something is patentable requires analysis of several different patentability requirements:

  1. Is the invention patentable subject matter?
  2. Is the invention useful?
  3. Is the invention novel?
  4. Is the invention non-obvious?

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 (i.e., patented) if the other patentability requirements are satisfied.

2. Are recipes useful?

Virtually everything is considered “useful” within the meaning of how the patent laws use the term.  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.

Deficiencies under the “useful invention” requirement of 35 U.S.C. 101 will typically arise in one of two Scenarios. 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.e., claiming a perpetual motion machine).

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.

Novelty is an issue that comes up under 35 U.S.C. 102 and, generally speaking, asks whether the invention is new.  Now I am going to provide an over simplification of Section 102, 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.  The word “identically” is chosen deliberately.  Section 102 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 102 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.

4. Are recipes non-obvious?

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.e., 35 U.S.C. 103) they will look at a variety of references and pull this from one and that from another, ultimately seeing if they can find all the pieces, parts and functionality of your invention in the prior art.

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. The true inquiry is to determine whether the combination of the pieces, parts and functionality found would be considered to be within the “common sense” of one of skill in the art such that your invention is merely a trivial rearrangement of what is already known to exist.

The “common sense” test for obviousness is relatively new in legal terms, stemming from the United States Supreme Court decision in KSR v. Teleflex nearly 5 years ago.  Prior to the Supreme Court’s pronouncement in KSR, the obviousness test was objective.  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.

It is also critical to understand that the Patent Examiner can conclude that it would have been “obvious to try” to combine the pieces and parts and, thereby render the invention obvious and unpatentable.

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.

 What kind of recipes can be 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.  If you really have something that is counter-intuitive then it becomes a little disingenuous to argue that it would have been “common sense” to do this or that to result in the invention.  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.  It is apparently quite difficult to freeze dough and then re-use it; it just doesn’t seem fresh.  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.

You can also always protect software and data management systems, including those that relate to recipes, such as U.S. Patent No.7,523,302, which relates to an electronic recipe management system, or U.S. Patent No. 6,975,910, which relates to managing an electronic cookbook.

I provide these examples because I want to try and make as clear as possible the fact that with recipes or food items there will need to be more than a resulting “special sauce” in order to get a patent.  How did you achieve the resulting composition?  Why is the resulting composition unique?  Can you define the composition so narrowly such that it is both new and we can say it would not have been obvious?  What particular problems (hopefully vexing problems) have you solved with your recipe?  Unfortunately, most recipes are not going to be patentable, but if you do have a uniqueness or you have solved a problem (i.e., tastes great and zero calories) then you likely have something worth pursuing to at least the patent search stage.

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 (i.e., that it has somehow been anointed by the federal government). 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 don’t 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!”

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Posted in: Educational Information for Inventors, Gene Quinn, Inventors Information, IP News, IPWatchdog.com Articles, Patent Basics, Patents


About the Author

is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


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16 comments
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  1. There are recipes for brandy from the early 1800’s…I mention them in an article I’m working on called “America’s First Patents”

  2. Michael-

    When you get done with the article I’d love to publish an executive summary here with link back to your longer work. That sounds like a fun, fascinating project.

    -Gene

  3. Gene, you might have included some mention of why one obtains a patent, and what difficulties one might face in trying to enforce a recipe patent. Also, recipe patents extend far beyond food products and include things like cell culture media and pharmaceutical formulations.

  4. Gene,

    With all due respect, your example of the crustless peanut butter and jelly sandwich is an example of what CAN NOT be patented.

    From Wikipedia:
    Sealed crustless sandwichIn December 1999, two independent inventors, Len Kretchman and David Geske, were granted U.S. patent,[3] “Sealed Crustless Sandwich” for a peanut butter sandwich that would have a long shelf life. The J.M. Smucker Co. bought the patent from the inventors and developed a commercial product based on the patent called Uncrustables. Smuckers then invested US$17 million in a new factory[4] to produce the product. By 2005, sales of Uncrustables had grown to $60 million a year with a 20% per year growth rate.

    Smuckers attempted to enforce their patent rights by sending out cease and desist letters to competitors, and by expanding their intellectual property coverage via the patenting of a machine to produce Uncrustables sandwiches in high volume U.S. Patent 6,874,409 “Method and apparatus for making commercial crustless sandwiches and the crustless sandwich made thereby”. The U.S. Court of Appeals for the Federal Circuit, however, rejected the viability of the patent citing its similarity to existing processes such as that of fashioning ravioli or a pie crust.[5]

    Regards,

    Tom S.

  5. T.W. Saur-

    With all due respect, this article is not intended to address what may be novel or what may be nonobvious. There was certainly something that could have been protected had the patent and claims been drafted properly in order to take into account prior art that they should have known about. Furthermore, the Wikipedia entry you cite also states that the Board of Patent Appeals and Interferences overturned the patent examiner’s rejections over the prior art in the reexamination proceeding, thus Smuckers did identify patent eligible material in the case, despite what you suggest. If Wikipedia is to be trusted (I haven’t found the BPAI decision) the Board issued other grounds of rejection regarding vagueness, but Smuckers never responded. A vagueness rejection is rather easy to overcome. All you have to do is be more clear. Smuckers obviously didn’t want to continue spending money to obtain the patent, otherwise they surely could have.

    So this is really a story about needing to carefully consider the prior art and draft a patent application with the prior art in mind. It also is a cautionary tale about how narrow you will likely have to make your claims in order to obtain a patent on a recipe or food item. Finally, it is a cautionary tale about what happens when you give up and cease participating in an application even after a patentable invention has been identified. Here a patentable invention was identified but the claims were not believed to be definite. Fixing that problem would have been rather easy.

    -Gene

  6. Paulanne-

    In an earlier version of the article I did mention in one paragraph the difficulty of enforcing a recipe patent, but as the article developed it started to get long. I also felt that the trouble of enforcing in this area is not peculiar to recipes and is shared with all methods. I anticipate writing an article about this issue more broadly in the coming weeks.

    Thanks.

    -Gene

  7. Gene – we’ll see, once someone agrees to publish!

    Paulanne – I mention recipes for pigment in my draft article, making the point that it’s unclear why a pigment recipe should be patentable, but not an edible recipe.

  8. Re. The marketing section. Can we print out a bunch of “Patent pending” menus during the process and continue to use them after, or do we have to destroy and reprint the menus when the patent gets rejected (on the remote possibility that our marguerita recipe isn’t patentable after all…)?

  9. Jeff-

    You can only use “patent pending” if you actually have a patent application actually pending. If you have no patent application pending it would be a violation of fair trade practice laws to use “patent pending.”

    -Gene

  10. I work for a quickly growing and very successful grocery company who is a HUGE player in the houston grocery market that even started dwarfing the Kroger chain. I have several recipes, which I had with me upon hire, that I created and that have been very profitable to this grocer when I make them at the deli. Recently one of the top execs came by and sampled them and he flipped out over how delicious they were and asked me and my store manager why we aren,t already increasing production on these items. They want to start the process of putting it under their own brand name by introducing them at a corporate luncheon. When I asked if I would see a piece of the pie through a promotion, raise, position change, etc. I was told no and they just want the recipes. I have even been warned that I need to hand over the recipes. How can I protect my interests in my creations. Are there lawyers out there who are willing help out us regular hardworking joe’s? This means millions in sales for this company and they know it by the large loyal following of clientel it generates that only come to the store for these items and the record sales numbers the items generate.

  11. Hi. I am interested in patenting a recipe that my mother introduced to me at child hood. The primary ingredient is yellow onions, but with the addition of sauce and spices creates a great condiment that’s not in the market. I would say that the contents are all off the shelf, but the combination is what is the non-obvious. I am certain an experienced chef would be able to determine the spices, but not exact. There’s also certain measurements associated with getting the recipe right. In any case, I would consider this to be a condiment and would appreciate any insight. Thank you.

  12. I have made a special recipe for over 30 years now and do not give out the recipe because I had to “earn” it. When I was a young bride to be, my husbands grandmother made an appetizer type recipe that everyone wanted to eat but didn’t know how to make. My husband-to-be loved this item and so I asked for the recipe. She told me there is no real recipe, it is in her head and if I wanted to spend time with her in the kitchen she would show me how. So I did…It took me several tries to duplicate it and she died during the process. So for years everyone expected me to bring this appetizer to functions and I did. I was asked to give it as gifts, make it for weddings, etc. I refused to give out the recipe because of the honor system in which I learned it. I also offered up the “watch me do it” but no one wanted too. I then divorced out of the family and still make this recipe just not for “them”. People always tell me I should patent it…I have heard in order to do so the ingredients, calories, nutrition content etc. have to be included, along with exact measurements etc…I am thinking about maybe trying to do this but was not sure if it was possible. I did a web search on the item and found no other one like it…I did find many appetizers in that category, but nothing at all similar. The thing is, it is very simple only 5 ingredients…I am not sure how to go about the process.

  13. Please Call me at 808-557-5486 due to a very. Important. Reciepe i was instersted in patening.Thank. U ver much

  14. Brendon-

    Recipes are patentable subject matter, but they are virtually never patentable because of obviousness. If you have some kind of industrial process associated with the recipe that could be protected if it is new and non-obvious, but in my experience a listing of ingredients is not going to be able to be patented.

    -Gene

  15. Sir,

    I am currently working on my master thesis which subject is comparing polish and american regulations concerning culinary recipe. In Poland obtaining a patent on recipe is impossible, so I got really interested in your article. Firstly, I though of writing my thesi mostly about copyright law and tradesecret, but it would be far more interesting if I could mention patents as well. My question is how can I find any literature on a subject? I am afraid that all my bibliography will sources from the Internet and I would prefer not to upset my conservative profesors. If you could suggest me anything I would be more than happy. Thank you so much for your article it was a really inspirational read that will help me proceed with my job!
    Sincerely, Joanna Bak

  16. I once had the pleasure of visiting Frito Lays’ corporate headquarters. They had an entire two story wall covered with the patents they’ve received on their recipes. Any time you see a new snack food in the store? Chances are it’s patented.