Utility Patent Requirements

The United States Patent and Trademark Office (USPTO) grants utility patents for new and nonobvious machines, processes, or composition of matter. For your drink to be patented, it must be unique from other beverage patents already issued. It cannot be a new spin on an existing drink. You must also clearly and comprehensively describe the drink you invented in the patent application. If you are new to this process, you may want to retain the services of an experienced patent attorney.

Conducting a Patent Search

First, you'll need to search the USPTO to make sure the drink recipe you've created is truly unique. The agency maintains databases for both current and pending patents.

  • Visit the USPTO online and select "Quick Search" on the left side of the page.
  • Enter your search terms, which should include keywords that describe your drink.
  • You'll receive results with links that allow you to further explore patents with similar keywords to see how close they are to yours.
  • Repeat the search for both the patent and patent pending databases.
  • You may also want to search on Google's patent database.

Preparing the Patent Application

If the patent application shows that your drink invention is truly unique, you can complete your patent application online through the USPTO, using the Declaration for Utility Patent Application form. You must include a complete description of the drink, including the recipe, ingredients, preparation method, and any other elements that distinguish it from beverages that are already on the market. You may also want to create illustrations or provide photos. The USPTO will give you a customer number and digital certificate, which you'll use as your online ID to file your complete application, pay associated fees, and check the status with the patent office.

Filing the Patent Application

The USPTO's filing system requires you to submit the following items to apply for patent protection:

  • Application form
  • Data sheet
  • Fee, currently $630 at the time of application along with an additional $1,185 publication and issuance fee if the patent is approved
  • Description of the drink
  • Claims, which are the unique aspects of the beverage that you want to protect
  • Recipe
  • Drawings

When you submit your official application, choose "Nonprovisional Application" and "Utility." You'll be asked to enter your name, address, phone number, and the name of the invention to be patented. You can save your application at any time and return to it using your registered customer number.

Attach your documents and exhibits using the online system. When you're ready, click "Confirm and Submit." You can pay the fees online using electronic funds transfer or credit card, or you can mail a check or money order.

You can check the status of your application on the USPTO site to find out whether it has been accepted. If your patent application is not approved, you have the right to file an appeal.

Can a Drink Be Copyrighted or Trademark?

Although patent protection is available for drinks, beverages cannot receive copyright protection. Copyright is another form of intellectual property protection that covers original works of art as well as software programs, music, film, writing, and other creative expressions. This protection prohibits the copyrighted item from being copied without permission of its owner.

Ingredients lists are not covered under U.S. copyright protection. However, recipes may be eligible if you include creative elements such as describing the drink, providing an original illustration, explaining a specific method for mixing it, or other illustrative information. In addition, a recipe included in a copyrighted book is included under the book's protection.

You also may be able to seek trademark protection for the name of a drink. This can keep other bars from using the name on their menu or prohibit them from doing so unless they use specific ingredients.

If you need help with patenting a drink or other invention, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.