Food Patents: Everything You Need to Know
A food patent is a type of utility patent that covers edible products and food-related processes and compositions. 10 min read
Updated June 25, 2020:
What Is a Food Patent?
A food patent is a type of utility patent that covers edible products and food-related processes and compositions. The federal government tries to encourage innovation in all fields, including cooking, by granting patents through the United States Patent and Trademark Office (USPTO). Food patents can be lucrative. Inventors of new recipes with significant appeal should apply for a patent.
Can a Person Patent a Food or Recipe?
Patent Class 426 allows for the patenting of foods and recipes. The language of this rule covers foods and edible materials. The law views food as a composition of matter, which is one of the categories eligible for patents.
An inventor can create a new composition that alters the structure in an innovative way. In other words, a chef can prove originality by crafting a recipe that no one else has ever made before. It still has to meet the same criteria for patents as anything else:
- It must not seem obvious to an average person in the field: This means a regular chef couldn't look at the same composition of matter and create the same food or recipe without help. The rules for meeting the non-obvious standard are in 35 U.S.C. § 103. The applicable court case that tests this law is the Supreme Court's 1966 ruling on 1966 Graham v. John Deere.
- It must have originality: One of the most important requirements for an innovation is proving newness. There's a common-sense element to the patent application process. Anything previously invented is ineligible for a patent. The same is true of foods and recipes. The new creation must have distinguishing features that prove no one has ever made it before. In the field of food, this is a tough thing to prove. The tastiest pizza in the world likely has many of the same ingredients and cooking steps as other pizzas. The patent applicant must show in detail what makes the new, more flavorful pizza different from all the others that came before it.
- It must have utility: An innovation must have value. An invention with no purpose is useless in the eyes of the USPTO. This issue isn't difficult to prove for a food patent claim. Any food that humans can eat safely has a certain level of value. Some recipes will have more worth than others, but the general rule is that all new foods and recipes should satisfy the utility requirement.
- Full disclosure is required: An additional step for food creations is to show how to make the product. The inventor must give a detailed explanation of the process. This description must instruct others in a way that anyone could mimic it without performing "undue experimentation".
The issue of originality causes one other problem. Some applicants try to patent an ancestor's treasured recipe. This attempt will fail. The applicant has to invent the food or recipe. For this reason, you cannot patent something passed down for multiple generations. You may have a claim for a trade secret, but a patent is out of the question.
In some situations, you may not have an innovation worthy of a utility patent. These are the patents most people think about when they plan to apply. A utility patent is hard to get.
An easier option for food patents is the design patent. This type of innovation highlights the look of something. It lasts for only 14 years. Utility patents last for 20 years.
You can earn a design patent on a product that somebody else has a utility patent for. This is perfect for foods where you improve the look. For example, Patent D762342 is for a cheesecake that has an embedded swirl.
Food patents are important for advertising reasons. You can describe your food creation as patent pending. If you receive a patent, you can also hype that in the ads. You will sell more of a product that you describe as patented.
Customers may not know patent law. They do know that something that earns a patent is impressive, though. Putting your patent award in your ads will attract more customers.
What Types of Foods Have Earned Food Patents?
The USPTO has awarded patents to countless types of food and recipes over the past two centuries. Most of them are involve improvements to processes and products.
For example, the inventor who extended the shelf life of foods with additives gained a patent. The innovations of mass cheese production and mass cereal production also earned patents. Anything that makes foods last longer or the manufacturing process easier is worthy of a food patent.
Some other examples of food patents include:
- Altering shapes: The physical appearance of a food can earn a patent in some instances.
- Creating combinations: The combination of flavors is something that a person can patent in certain instances. For example, the storage of peanut butter and jelly in the same container earned Patent US3117871.
- Improving flavor: This type of innovation is important. It is hard to prove, though. Taste and flavor aren't things that everyone agrees on.
- Improving textures: Some batters and doughs cook differently depend on the ingredients. You can get a food patent for any process that exchanges ingredients to make the food tastier or easier to make or to give it a better texture.
- Increasing shelf life: Extending the storage duration of a product to keep it fresh longer is an important innovation.
- Making foods healthier: Reducing the calorie total of a food or makes something vegan falls into this category.
- Making foods easier to cook: Making something possible to cook in a microwave or any other innovation that speeds up the cooking process.
The basic rules of patents still apply to all the categories above. A person must prove utility and newness. You also must apply to patent the idea within a year of thinking of it.
What's a Good Way to Apply for a Food Patent?
The best approach is to think about food in the way that the USPTO will. Since Patent Class 426 evaluates claims in terms of composition of matter or the process for making the product, you should as well.
This patent application isn't like writing a recipe. General guidelines like using an iron skillet and stirring every 10 minutes aren't useful. You need to describe your food or recipe at the molecular level. You're now describing the physical composition of the ingredients. It's a much easier way to prove newness and originality. You can use science to support the claim.
You also need to prevent competitors from stealing your idea after it's patented. While you should add specifics for the process, describe the cooking steps as broadly as possible.
A recipe that calls for a preheated oven at 375 degrees sounds useful. Unfortunately, someone else can try to patent a different recipe by using a temperature of 400 degrees along with a few other slightly different steps. At the molecular level, a clever applicant can draw enough of a distinction to win a patent.
The USPTO suggests that people use the EFS-Web system to apply for food patents. You will fill out all the paperwork and add illustrations through the online system. You will also pay $400 more for the application fee if you don't file online.
Inventors can extend the clock on protecting an idea for a food patent. You can file a provisional patent application. This step will give you legal protection for a year from the application date. You can use this time to test and improve your idea.
When the year is about to expire, you can file a non-provisional patent application. It's a great way to give yourself more time if you're sure your food idea is good enough.
What Are the Best Ways to Earn a Food Patent?
The best approaches to earning a food patent are:
- Find a "sweet spot" in the manufacturing process: The aim here is to find a new condition in the manufacturing process or product that you can innovate. This is the "sweet spot" that can increase your odds of receiving a patent.
- A new use for a known product or process: The goal is to find secondary purposes for established products. For example, if you create a recipe that you can prove cures headaches, you've added medicinal properties. Your innovation has value, and you deserve a patent.
- Synergy: At times, the combination of unrelated ingredients can have shocking results. If putting a banana in soup created a new food craze, that innovation would have synergy and be worthy of a patent.
- Making something counterintuitive: The hardest part of winning a food patent is proving that nobody else could think of the idea. An effective way to pass this test is to do something weird and unexpected. That way, you're automatically making something that no one else ever would.
Here are some examples of weird innovations that earned food patents:
- Fat and egg yolk substitute: Fats and eggs are delicious. They're also fattening and unhealthy. An inventor found a way to swap out the unhealthy parts of the ingredients without sacrificing flavor. It seemed impossible. That's why it earned a patent.
- Frozen dough that tastes better: When someone freezes dough, it creates a problem. The thawing process leaves an odd taste. A person found a way to freeze dough in a way that it tasted the same when unthawed. It also shortened the cooking time and gave the cook more of the product after unthawing. This idea had a lot of utility.
- Jelly and peanut butter food slice: A person came up with a new way to make peanut butter and jelly. The steps included two layers of jelly in specific layout and proportions. This design left a hole where a person could insert the peanut butter. It changed the flavor profile slightly since the eater got a different bite than expected. It also had a new process and structure, a good reason for a food patent.
- Sealed crustless sandwich: This is another type of peanut butter and jelly food patent. The inventor sealed the outer crust of the sandwich. The bread didn't get soggy if it sat too long. That made the flavor last longer. It also stored better than a regular peanut butter and jelly sandwich. These are valuable traits worthy of a food patent.
What Are Examples of a Sweet Spot?
Finding a sweet spot involves a combination of skill and luck. Some innovations happen due to careful planning and strategy. Others are completely by accident.
ChocoHeaven is an example of an accidental sweet spot innovation. The makers of this product were cooking their products the normal way when someone set the oven temperature wrong. The outcome was a delicious chocolate flavor that was less fattening. All prior attempts to lower fat content had made the flavor worse.
The company filed a patent application. They claimed two innovations. The first was a key temperature range in the cooking process. The other was the innovation of reducing fat while maintaining flavor.
Chocoheaven's patent claim was important. A competing company paid a former employee of Chocoheaven to reveal the company's secret. The patent allowed them to keep all rights to this manufacturing process. They had a valuable monopoly in the field of healthy chocolate manufacturing.
Another sweet spot is finding a new use for a known product. The inventor simply needs to show and prove the weirdness element mentioned above.
An example of this type of sweet spot is the Feijoa peel. This product has proven hygiene benefits. It works in the same way as hand sanitizer. A man trying to create a new recipe once burned his mouth. Desperate to stop the pain, he ate a few Feijoa peels. To his shock, his third degree burns vanished.
The inventor checked to see if anyone else had noted the medical benefits of the Feijoa peel. When he saw that no one had, he applied for and earned a food patent. He won his patent when he showed a new and strange use for a food product.
What Are the Steps in Applying for a Food Patent?
You should take the following steps to apply for a food patent:
- Verify that you meet all the patent requirements, paying particular attention to newness. You need a food innovation that is "novel and non-obvious."
- Search the patent database for existing patents.
- Fill out form PTO/SB/05.
- Describe your innovation in explicit detail.
- Add any applicable illustrations to the application. Fill out a declaration form.
- Fill out form PTO/SB/17 and pay the application fee.
- Officially file your request for a food patent.
What Are the Most Patentable Food Categories?
Food categories aren't exclusive to food and recipes. Kitchen inventions are also patentable ideas with significant financial potential. The following categories are all proven fields for successful patent claims:
- Food combinations: Many existing foods use established ingredients. A clever method to gain a patent is to find different ingredients to replace the established ones. These food combinations should emphasize healthier eating or similar benefits. The goal is to create a new composition of matter that is more desirable than similar foods and recipes.
- New foods in special diets: Vegan and gluten-free diets have become a part of daily living. Many restaurants offer meals to satisfy customers with these needs. An inventor who discovers a new way to make these foods has a strong claim for a patent. As an example, vegans don't eat eggs. Since many recipes require eggs, a person who finds a viable substitute could earn a patent. The new composition of matter must innovate while satisfying the needs of people with special diets.
- Food-based software apps: Creating a food-based app offers two paths to a patent. A popular smartphone product could show regular people new ways to cook better meals. A person should always apply to patent software before releasing it to the public. The other path is to add smart device communication into an existing kitchen app. For example, an inventor could make a toaster that a person activates with a smartphone. The idea is to add utility that makes cooking easier.
- Sous vide cooking at cheaper cost: This specialized type of cooking is popular in upscale restaurants. Cooks quick-seal ingredients at a set temperature. This practice gives them more control of the process. Great chefs control the scientific reactions of foods, changing the composition of matter more efficiently. The problem with sous vide cooking is that it's expensive. Clever inventors try to find new, cheaper ways to do the same cooking technique. These innovations are affordable for smaller restaurants and many home chefs.
- Innovations on existing kitchen inventions: The same logic applies to other devices as sous vide cooking. Making the same device smaller is a strong innovation. People have limited counter space in their kitchens. They can leave more devices within reach if these appliances are smaller. For example, an inventor who could create a toaster that's roughly the same size as a slice of bread has made something with utility.
- New brewing recipes and ingredients: Microbreweries have soared in availability in recent years. Craft beers use science to develop new flavors. Any inventor who creates a flavorful beer should patent it. Beverages have tremendous value in the marketplace. You should take dutiful notes of the brewing process. Explaining the steps on the application isn't easy. You must meet the newness and non-obvious requirements.
Food patents aren't easy to get. You'll have to show precise details about why your creation is new and non-obvious. Your best bet is to post your legal need on UpCounsel's marketplace to get some help with the process. The legal experts on this site have years of experience in dealing with patent claims. You can find the right one to guide you through the process and thereby improve your odds of getting a patent.