The Law of Recipes: Are Recipes Patentable?
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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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:
- Is the invention patentable subject matter?
- Is the invention useful?
- Is the invention novel?
- 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!”
About the Author
Gene Quinn 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.