Can you patent your recipes? The lowdown on food patents

Once and for all, can food recipes be patented? Here are basic information about the matter.
Patents may be granted for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” the U.S. Patent and Trademark Office (USPTO) noted, citing Title 35 of the United States Code, Section 101. Food recipes typically have three parts, namely an ingredient list, instructions on how to use and cook them, and the final product resulting from those two components.

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 A recipe may be patented if it successfully meets a number of criteria. It should be novel—it cannot be a food item that’s already familiar to the public or an apparent combination of preexisting food items. It should be “non-obvious,” where the inventor must show that the food wouldn’t have been a trivial, routine advance beyond other previously known foods. Know that this can be quite a complicated area of patent law.

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The inventor, too, must adequately disclose the food, providing a comprehensive revelation of how to make and use it. The recipe must be readily reproducible by someone armed with ordinary skill in the industry.

Now, what if you can’t patent or trademark? Well, there’s such a thing called a “trade secret,” which can protect an original recipe but isn’t legally binding. It simply means that you have an internal system for keeping things secret. This doesn’t have a legal recourse when things go awry, so make sure to have a trustworthy staff and a process that prevents a violation of the trade secret.

Michael E. Melton has benefited from a distinguished career as an intellectual property attorney. He is currently a partner at Norris & Melton, P.L.L.C., in Washington, D.C. Atty. Melton has also been a lawyer and consultant at IP Counsel Consultants since 2002, where he provides advice to clients on the licensing, acquisition, and management of intellectual property assets and expert witness testimony. Read more articles covered by his practice on this page.