The short answer is yes; you can patent a recipe.
Recipes potentially have patentable subject matter, hence eligible for registration as copyright with the United States Patent and Trademark Office (USPTO).
However, not all recipes meet the patentability threshold.
You just came up with this brilliant recipe for making tasty ketchup with longer shelf lives, and you’re wondering if you can get patent protection for it.
Or, maybe you just realized that you’ve never seen the old salad recipe passed down from your great-grandmother anywhere else.
We must have all thought of patenting specific food ideas.
So, what prevented you from actualizing this thought?
For most people, it’s the uncertainty of whether their recipes are patentable or not.
The other reason could be that you don’t know how to register a patent, or you find the process too overdrawn.
In this article, we look at what makes a recipe patentable and how to go about the patenting process.
But first, let’s distinguish between a food idea and a food recipe.
Can You Patent a Food Idea?
This is a question we’ve recently been receiving quite often—is it possible to patent a food idea?
To answer it, we should have some basic understanding of how the U.S Patent Laws work.
The United States Patent and Trademark Office is the body in charge of granting or revoking patent rights in the U.S.
It protects unique inventions, processes, machines, and designs from sale, reproduction, dissemination, and use without the inventor’s consent.
Among the Patent Laws guiding USPTO in performing its roles is that any work submitted for patenting must be fixed to a tangible medium.
In simple terms, applicants must present physical evidence of their inventions.
For instance, if you want to patent a song, you must attach its written down lyrics or audio/video recording.
Therefore, it is not possible to patent a food idea.
An idea is abstract and does not have any patentable subject matter.
Instead, you must first convert it into a recipe and attach it to a tangible medium.
The recipe must contain either a unique composition of ingredients or a new food-making process.
Some people prefer not to patent their recipes because the process requires full disclosure.
To register a recipe for patenting, you must state all of its ingredients and clearly describe the process of mixing them to come up with the final product.
With all the recipe’s components and processes divulged, it’s pretty easy for somebody else to steal the food idea before you complete the registration.
While this fear is justified, this is not a common phenomenon.
Patenting is essential, especially in scenarios where there’s a possibility of infringement.
Why Should You Patent Your Recipe?
Here are four reasons why you should consider patenting your recipe:
- It enables you to sue others for infringement: According to the U.S Copyright Laws, “no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” Therefore, if anybody uses your recipe without authorization, you cannot sue them unless you’ve registered it with USPTO. Although the law allows you to patent the recipe and make a legal suit post-infringement, this is not the best way to go. The process is so overdrawn that by the time you get the patent rights, the infringement claim may no longer hold ground.
- Patenting your recipe puts it in the public record: Once USPTO has granted you patent rights, they immediately post the recipe in the Copyright Public Records Catalog. Besides making the whole world aware of your patent claims, the records also detail your name and how to reach you. This makes it easy for others to contact you for permission to use the recipe.
- Timely registration gives you a presumption of validity: When you sue someone for illegally using your recipe, the first thing the court does is to determine that it’s truly yours. If you patented the recipe within five years after making it public, the court automatically assumes it’s yours. This is particularly crucial in scenarios where you’ll be seeking injunctive relief like restrainment of the defendant from using the recipe as the trial continues. If you didn’t register the recipe in time, the court can’t grant any relief until they ascertain ownership.
- Pre-registration saves you litigation costs: If the infringement occurred post-registration, the Patent Laws bind the defendant to pay your litigation expenses. Also, the courts will tabulate statutory damages and any other compensations based on the effective date of patenting.
Is Your Recipe Patentable?
Besides being fixed to a tangible medium, there are four other patentability requirements for food recipes.
Before you make a patent application, you should ascertain that the recipe meets all these qualifications:
Does The Recipe Have a Patentable Subject Matter?
Does the recipe have content for which USPTO grants patents?
A recipe becomes patentable either as a composition of different components or a unique process for making food.
You can, therefore, obtain a recipe patent for the use of a combination of various ingredients or the use of a specific food-making process, or both.
Is The Recipe Novel?
For a recipe to qualify for a patent, it must be new.
USPTO defines novelty in two broad ways:
- The submitted work must not resemble anything that has been patented before. Check the USPTO Database before submitting your application.
- The recipe must not have been disclosed to the public. If you unknowingly make a disclosure, you should apply for a patent within twelve months. Once this period has elapsed, the recipe automatically becomes “prior art” that cannot be patented.
This requirement is one of the most challenging hurdles in patenting recipes.
That’s because novelty is a very vast term.
For instance, serving food made from your recipe in a public event or putting the recipe up for sale is considered a public disclosure.
That explains why it’s impossible to patent that brilliant family recipe passed down from your grandmother.
Is The Recipe Non-Obvious
Non-obvious here means that a random person in the recipe’s field should not consider it obvious.
In simple terms, the recipe should not be a product of common sense.
For example, let’s say you came up with a recipe for making a salad that lasts for five days without wilting the salad.
A regular salad maker should not be able to create the exact product without following your recipe.
Is The Recipe Useful
Most applicants have no trouble with this requirement because all foods are helpful.
So, it’s pretty easy to demonstrate the importance of a food recipe.
However, this should not be a leeway to not taking this qualification seriously.
However, obvious as its benefits may seem, it’s still essential to state them in the application process.
We advise that you begin with the windfalls unique to your recipe to enhance your chances of approval.
How to Apply for a Recipe Patent
Once you’ve confirmed that your recipe meets the above requirements, the next step is to submit your patent application.
- Decide the type of patent you want: For recipes, you can obtain either Design or Utility patents. A utility patent protects how the recipe is used or works, while a design patent safeguards how the final product looks (shape and packaging).
- File the paperwork through an attorney: While it’s possible to handle everything by yourself, the patent office recommends that you hire an attorney. And reasonably so—you need some background in law to sort all the paperwork and ensure that you use the correct terms. Online application through the EFS-web system is faster and will save you $400 “non-electronic filing” fees.
- Pay patent application fees: The USPTO recipe patent charges vary depending on the type of patent you’re seeking. As is with filing paperwork, USPTO recommends that you pay the fees via a credit card or electronic funds transfer.
- Wait as USPTO reviews your application: Typically, this takes several months. The patent office will contact you to inform you of the outcome. In the meantime, you can print “Patent Pending” on the food’s packaging to prevent infringement.
We hope that this article helped you with everything you need to know about how to patent recipes.
If not, let us know what we missed in the comment box below.
