By Stephen B. Schott
My mom challenged me to eat a hot dog with peanut butter on my 8th birthday and I did. It’s delicious and we call it a “nutty dog.” She found the recipe in a cookbook, so it is not a new idea. But the thinking that lead to this Frankenstein’s monster food is the kind of crazy genius that leads people to ask the question that follows me everywhere: “Can I patent a recipe?”
The answer is a definitive “Yes.” But, and there’s a but, if you have a recipe that you believe should be patentable, you will face all of the same legal hurdles that any patent application faces. All inventions must be:
- patentable subject matter,
- novel, and
These legal requirements can be hard to understand but both the USPTO and Gene Quinn at IPWatchdog have written great articles explaining how the law applies to food recipes. If you want a review of the legal issues, I encourage you to read those articles. Both articles reach the same conclusion: A recipe’s biggest hurdle is not 1-3 on the list, but 4: Is the recipe non-obvious?
THE RECIPE FOR PATENTING A COOKIE
To answer the non-obviousness question, let’s use a hypothetical, which is easier than plunging into the legal analysis out of context. In our hypothetical, you have created a new cookie. It’s delicious. Everyone who samples it loves it. But is it patentable, and in particular, non-obvious? A few things to consider are indicators of non-obviousness like:
- The invention's commercial success,
- Long felt but unresolved needs,
- The failure of others,
- Skepticism by experts,
- Praise by others,
- Teaching away by others,
- Recognition of a problem, and
- Copying of the invention by competitors.
Keeping those in mind and assuming that your invention is different than earlier recipes, let’s turn to some examples.
Recipe variation 1: Your cookie recipe is the same as a standard cookbook recipe, except that you adjusted the flour and sugar in a way that makes it sweeter. The sweet cookie is delicious—anyone who tastes it agrees that it’s incredible. Sadly, though, this cookie recipe is probably not patentable because it is obvious.
The USPTO even has a specific comment on the patentability of something like this. "A final food product typically is nothing more than the expected sum total of individual components. For example, the more sugar one adds to a cake batter, the sweeter the finished cake is expected to be.”
Conclusion: The patent dough does not rise. Non-patentable.
Recipe variation 2: You add hops to the cookie batter and the result is a bitter hoppy-tasting cookie that no one has ever tasted before. This too, according to the USPTO may hit a stumbling block. "Similarly, adding tarragon to a dish that doesn’t usually include tarragon may result in an unexpected taste for that particular dish, but not an unexpected result.”
Conclusion. The patent dough does not rise. The delicious beer cookie is non-patentable.
Recipe variation 3: You add a new ingredient that improves the cookie shelf life and the market loves it. Looking at the indicators of non-obviousness above, your new ingredient fills a long-felt need (improved shelf life), has commercial success, and solves a problem where others failed. These would weigh in favor non-obviousness.
Conclusion. The USPTO issued a patent for an improved shelf-life cookie in 1982.
Recipe variation 4: Everyone loves warm cookies, so you develop a mix of known ingredients that can cook the perfect—and warm—cookie in a toaster. There has been a resurgence in the pop(!)ularity of Pop Tarts and there’s been a demand for cookies that can cook in toasters. Existing toaster cookies tend to burn and cook irregularly. Even though you used common ingredients, the invention's commercial success and the failure of others weigh in favor of patentability.
Conclusion. The USPTO granted a patent for a toaster cookie in 2000.
Recipe variation 5: The baking industry’s solution to helping cookies keep their shape was to add more flour to cookie dough but this was largely a failure. You add an ingredient to the cookies that allows them to hold their shape better while maintaining the flour ratio. This overcomes the problem of cookies tending to spread when cooked and also recognizes that other solutions to the problem of spreading cookies only considered using more flour to solve the problem—something that did not work well—which is failure by others.
Conclusion. The USPTO granted a patent for a cookie that held its shape better in 1994.
The USPTO regularly grants food recipe patents, but they must clear the same hurdles as all inventions. Some are for things like synthetic fruit spreads and others are for lower calorie alternatives to natural foods. If you have a recipe and want to discuss its potential for patentability, please contact me.
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