This is a time of year when we pull out our special recipes for holiday celebrations. Perhaps those special recipes are unique or taste especially good when compared to recipes for similar foods, or perhaps those recipes may be for a creation unlike foods previously known. But is it possible to seek patent protection for recipes? Or do you even want to seek patent protection? The short answer is, yes, it is possible to seek patent protection for recipes. Patent protection is available for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” according to Title 35 of the United States Code, Section 101. The ingredients being put together in a certain manner to create a food product may qualify as a “composition of matter” or “manufacture,” and the steps to make the food product may qualify as a “process.” For example, Kraft® has sought and obtained patents related to processed cheese and even methods for producing cheese wrapped in a single-slice form.

A recipe or the resultant food product may be patentable subject matter, but they must also be new and non-obvious according to Title 35 of the United States Code, Sections 102 and 103, in order to be patentable. If the recipe or the resultant food product is not previously known, it may be considered “new.” But if one would know how to create the recipe or the resultant food product based on knowledge of previously known ingredients, recipes and/or food products, then the recipe or resultant food product may be considered obvious, and thus, not eligible for patent protection.

So let’s say that a recipe and/or resultant food product is new, non-obvious and eligible for patent protection, the question remains: do you really want to patent it? This can be a difficult question to answer and involves considering the pros and cons of seeking patent protection.

• The biggest con for many when considering whether to protect a recipe with a patent is the public disclosure involved with patent protection and the limited time of exclusivity associated with a patent (if granted, the patent expires 20 years after filing). But if no patent protection is sought, the “secret” recipe can remain a secret forever.

• However, a potential positive for seeking patent protection are the exclusive rights to stop others from making, using, offering for sale, selling, or importing into the United States your recipe or food product, even if others independently develop the recipe or food product. If the recipe is maintained as a trade secret, this is a non-exclusive right, and if others independently develop the recipe, there is no way to prevent them from doing so.

Losing exclusivity after expiration of a patent does not always mean that market appeal will be lost. Take the example of the McIlhenny Company, producers of the Tabasco® brand of hot sauce. The McIlhenny Company received patent protection for its unique formula for processing peppers into a fiery red sauce back in 1870. Though that patent has long-since expired, the process and the sauce are still highly regarded even today.

Thus, no single way of protecting innovation in the food industry is perfect in all situations, but it is good to know that patent protection is available for recipes and foods under the right circumstances. So as you are preparing that holiday dinner with those special recipes, you can consider this food for thought – is patent protection right for you?

For more information on this topic, please visit our Patent Protection service page, which is part of our Patent Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the trademark firm and its trademark attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.

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