You’ve come up with this brilliant food idea, and you’re wondering if you can register it as copyright.
It could be an idea for healthy toddler food or a new salad dressing that can stay fresh for a couple of days within wilting the lettuce.
Whether it’s as a result of an instant stroke of genius or a product of months of research, you must have inevitably thought of turning it into a commercial enterprise through patenting.
Is It Possible to Patent a Food Idea?
To answer this question, we must first understand how the Copyright Laws work.
In the U.S, the United States Patent and Trademark Office (USPTO) is the body responsible for enforcing copyright laws.
It reviews and approves patenting requests and safeguards copyrighted inventions, machines, processes, and designs from unauthorized use.
As a prerequisite to registration as copyright, the said work must be fixed to a tangible medium.
For instance, if it’s a song, you must have recorded it as an audio or video or written down its lyrics.
So, is it possible to patent a food idea?
No, it is impossible to patent a food idea. This is because the U.S copyright laws do not allow the patenting of mere ideas. The concept must be converted into actual works and fixed to a tangible medium.
Therefore, to qualify for a patent, you must present the food idea as a unique food recipe or new food-making process.
Also, the idea must be useful, original, and non-obvious.
Some people refrain from patenting their recipes because to register for copyright, they have to disclose all the ingredients in the recipe and how to mix them to come up with the product.
While this argument holds ground, you may still want to patent your recipe, especially if there’s a possibility of an infringement claim.
Before we delve into the details of how to patent a food recipe, let’s look at the patenting requirements.
What Are The Requirements For Patenting A Food Recipe
To qualify for registration as copyright, your recipe must meet the following four main requirements:
It Must Have Patentable Subject Matter
What this means in simple terms is that the food recipe must consist of contents for which the copyright office grants patents.
In most cases, recipes qualify for patent protection in two broad ways:
- As a composition of different matters: You have to combine several ingredients to create the product. The assumption is that you’re the only person who knows the components you’ve used.
- As a process of making food items: Even if everybody knows the ingredients in the recipe, it’s only you who understands how you’ve combined them in what proportions. Therefore, you can register your unique process as copyright.
It Must Be Novel
“Novelty” here means the food idea must be new; it should not be similar to anything that has been registered as copyright before.
Also, it shouldn’t resemble anything that has been publicly disclosed in the past.
If you accidentally or intentionally disclose, sell, or offer the recipe for sale, you must file for a utility patent within a year.
Once the twelve months have elapsed, you cannot apply for a patent.
The copyright office will automatically consider the recipe as “prior art” and deny patenting because it lacks novelty.
To meet this requirement, therefore, you should conduct in-depth research to confirm that your said recipe is not in the public domain.
You may also want to check the USTPO database to verify that nobody has patented it before.
This is particularly essential because USPTO is usually not kind to those who try to copyright other people’s work or give wrong information during patenting applications.
If caught intentionally violating this provision, the copyright office may slap you with a temporary or permanent patenting ban.
It Must Be Non-Obvious
This is arguably the most challenging requirement to meet.
You must prove to USPTO that at the time of applying for a patent, a random person in the field of your recipe will not find it obvious.
For instance, let’s say you want to patent a recipe for a two-year-old toddler.
The copyright office must examine the formula based on whether a regular caregiver to a child of the same age would consider it unique.
If not, the recipe won’t qualify for patenting.
Usually, this is the first consideration before the examiners continue with the other requirements.
For the recipe to qualify as non-obvious, it should contain ingredients that haven’t been mixed in any other recipes in the past.
Simply adding more or fewer ingredients to an existing recipe doesn’t make it non-obvious.
For example, you can’t claim that by adding more lettuce to a popular salad, you have a non-obvious recipe.
Instead, it must contain different components that are mixed in different proportions.
It Must Be Useful
Finally, you must demonstrate that the recipe has identifiable benefits.
For food, the usefulness requirement is usually easy to satisfy.
However, just because all foods have some usefulness doesn’t mean you disregard this requirement.
Ensure that you include a statement asserting the windfalls of your recipe’s product in the patent application.
You might want to start with the benefits that are unique to your recipe to increase your chances of qualification.
Note that you must fully disclose the recipe for it to qualify for patenting.
As the inventor, you must provide a detailed description of the process.
The explanation should be so clear that anybody who wants to follow the recipe can do so without performing “undue experimentation.”
How to Apply for a Food Patent
Here’s a step-by-step guide on how to patent your food recipe:
1. Determine Whether The Recipe is Patentable
This is the most crucial step. Not every brilliant food recipe can be patented under U.S patent law.
It must be novel, non-obvious, useful, and have a patentable subject matter.
2. File a Patent Application
Once you’ve ascertained that the recipe is viable for patenting, you file a formal application to register it as copyright with the USTPO.
You must do this within the first twelve months of publicly disclosing the recipe.
Disclosure for food recipes is a very vast term—it can mean anything from serving food made using the said recipe at a public event to putting the recipe up for sale or selling it.
The best way to apply for food patents is through the EFS-web system; it’s simpler and cheaper than other offline alternatives.
Describing Your Recipe
The most critical part of filing a patent application is the description of your recipe.
You should describe the recipe the same way USTPO thinks about food. Patent Class 426 evaluates patenting claims for food recipes based on either the process of food-making or the composition of the matter, and this is the approach you should use.
General guidelines like “stir for 15 minutes” aren’t necessary here.
Instead, focus on the chemical composition of the ingredients and describe the recipe on a molecular level.
It’s way easier to prove novelty when you use science to back your claim. In some cases, you may need professional help unless you’re a scientist.
While you should describe the process in detail, avoid over-explaining the cooking steps.
For instance, instead of specifying that the oven should be preheated at 160 degrees, you can say that the oven should be pre-heated until it’s hot enough.
This prevents others from stealing the recipe before it’s patented.
3. Pay Application Fees
Check the updated USTPO food patent application charges before you make any payments.
They vary depending on the type of patent you want.
The copyright office recommends payment via electronic funds transfer or credit cards.
4. Publish a Notice of The Application As You Wait for Approval
Once you’ve done everything, wait for USTPO to review your application.
This process typically takes several months. In the meantime, you can publish “Patent Pending” on your food to deter others from the unauthorized use of your recipe.
There you have it! Everything you need to know about patenting a food recipe.
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