How Do I Patent a Recipe?

What is the most effective method to patent a recipe? That’s the question you should ask if you have an innovative recipe on your hands. Keep in mind that your recipe must be non-obvious, novel, and useful in order to be patented.

Chefs and household cooks have been creating wonderful recipes for ages, so finding something “new” or “novel” might seem to be a daunting task. However, you just might have something which is new or novel and a recipe patent could be an option. If those qualifications are not met and a patent cannot be obtained, it’s important to understand that there may be other legal protections which you can utilize in order to claim that recipe as yours alone, such as trade secrets, which are discussed below.

Understand What Makes Something Patentable

It’s important to understand what makes something patentable. According to Section 35 USC § 101, anyone who discovers or invents a useful or new machine, process, composition of matter, or manufacture can obtain a patent.

Recipes can often meet that definition since they are generally useful, involve a matter of composition and can involve a new technique or process – especially as new kitchen gadgets are invented. So, it’s important to keep an open mind when determining whether your recipe is patentable. It just may be!

Is Your Recipe Novel?

What does “novel” mean? In its most simplistic terms, it basically refers to something which has not existed in the past. However, that term can be misleading when trying to patent a recipe. In fact, it’s complicated to determine whether combining certain ingredients into a recipe has or has not been done previously.

The best way to determine whether your recipe is novel is to search the United States Patent & Trademark Office (USPTO) database to check if your recipe may have already been patented by someone else. You can also perform internet searches and look through cookbooks to see if there are any similarities to your dish.

Sadly, if you find your exact recipe (every ingredient is already listed) in either of those places, you may be not be eligible for a patent as someone else may have already patented the recipe first. Since it is “published” already, the recipe is considered to be “disclosed.” However, if you do not find your exact recipe (yours differs in some way) in either of those places, you should determine whether yours may meet other qualifications.

Is Your Recipe Non-Obvious?

Recipes which involve a unique combination of ingredients or a different technique that produces non-obvious results may become patentable. Yet, if your recipe is simply obvious (adding chocolate chips to make chocolate chip cookies), and could have been thought of by anyone, your patent will probably not succeed.

The question to ask is whether a seasoned cook would be surprised by the recipe. It’s never enough to just add a new ingredient or stir the mixture clockwise instead of counter clockwise in order to obtain a patent. For example, you might decide to add nutmeg to your chocolate chip cookies and think you’re on to something. However, that’s generally not “obvious enough” of a change to make it patentable, as seasoned cooks know that adding another spice would make the recipe taste differently. Remember, the recipe has to also be “novel.”

Is Your Recipe Useful?

Recipes must be useful to gain a patent. A useful recipe is one that works and is wholly operative. That being said, something is useful if it works at all, regardless of whether it is crude.

There are two types of deficiencies that are important to understand. One relates to how the invention will be used is not apparent from the description provided. The other relates to when an assertion is made regarding the invention’s utility by an applicant who is not credible. Both are extremely rare, but important to keep in mind.

Decide What Kind of Patent You Need

Many recipes require a utility patent that protects a new invention which has a useful application. A utility patent covers new processes, methods, machines, devices, manufactured items, chemical compounds or any improvements to any of those processes or items.

Many recipes would likely fall under a utility patent, unless of course, your packaging plan is unique and might require its own, distinct patent. If so, you should consider also applying for a design patent. Finally, if your recipe might require international protection, consider applying for a global patent as well.

Work With an Attorney to File Your Paperwork

Filing patent paperwork can feel like an overwhelming task. However, there are many patent lawyers who specialize in filling out all of the required paperwork required by the USPTO. Although you’re allowed to complete and submit that paperwork on your own, the USPTO recommends that you hire an attorney to manage the paperwork and make certain that you submit all the materials required. These papers are submitted to the patent office electronically regardless of whether you file them or have a patent attorney do it for you. The patent application itself should be filed either via regular mail (although that will cost you $400) or online (which will save you $400).

Wait for Your Application to Be Approved or Rejected

Once your patent is approved, the patent office will contact you, you’ll pay a publication and issue fee and then your patent will be granted. If your patent application is rejected, you will have the opportunity to appeal that decision or make amendments suggested by the patent office. Then, you can resubmit your patent application for a second review.

If your patent application is rejected, but you still want to protect your recipe, consider declaring it a “trade secret.” Anyone who knows the secret will be required to sign a non-disclosure agreement (NDA) so that the recipe will not be disclosed.

Step-by-Step Instructions to Apply for a Patent for a Recipe

Patenting a recipe can often be a confusing and complicated process, especially if you do not understand the criteria for patenting food compositions. The following five steps relate that process:

  1. Submit the application. When submitting an application to the USPTO, the agency will conduct a thorough search of your recipe. It’s important that you first do a search of your own to make sure that your recipe will survive the USPTO’s search. The USPTO website is available to search for your recipe and there are patent books which are generally maintained by many public libraries. Keep in mind that you can also hire an experienced patent lawyer or patent firm to perform that search for you.
  2. Access the Patent Electronic Business Center on the USPTO website. First, click on the link for the Electric Filing System, then get a customer number and digital certificate from the filing system.
  3. Fill out a utility patent application. You will use a Patent Class 426 application, which is for food or edible material which is intended to be consumed. You will have to decide whether you want the application to be non-provisional or provisional and then accurately describe the recipe by using broad terms which can also include any modifications to the formula.
  4. Pay the filing fee. The USPTO accepts deposit accounts, bank account withdrawals and credit cards. Filing fees are not refundable, even if your application is later denied. You can check the USPTO guidelines to see if you qualify as a small entity, which reduces the filing fees in half.
  5. Submit the application for processing. This final step formally submits your application. Although non-provisional applications can take up to two years to process, you can use the system login and password you created to check the status of your patent application whenever you choose.

Tips and Warnings

  • Patenting your recipe is not necessarily always the best way to protect it.
  • The patent process can be expensive, complex, take years to complete and will only give you exclusivity for 20 years.
  • Most large corporation seeking to protect a recipe do so by making it a trade secret.

Pros and Cons of Patents

There are many pros and cons to patenting recipes. Consider the following:

Pros:

  • Keeps others out of the market
  • Restricts competitors
  • Provides revenue from sale or licenses
  • Gives your product credibility
  • Retains the right to practice the invention

Cons:

  • Cost of the patent application
  • Maintenance fees every fourth, eighth, and twelfth years
  • Liability cost to defend your patent from infringement
  • Complex, complicated and time consuming process

The Alternative: Trade Secrets

Trade secrets are a good alternative to patents. Examples include secret recipes in products like Coca-Cola flavoring and Kentucky Fried Chicken (KFC) batter. Protecting a trade secret when you’re a small company can simply amount to never telling anyone your recipe. However, when your business grows into the likes of Coke or KFC, your trade secret should be protected through the appropriate channels.

To make sure your recipes are protected, it’s important to develop a plan that holds your employees accountable for not disclosing your recipe. You should identify what secrets need protection and then develop a program or policy to keep them safe.

It’s always in your best interest to contact an attorney to develop a defense program that makes sense, including having all relevant employees sign NDAs and other confidentiality agreements. You might also consider limiting access to databases, buildings or documents with contain trade secrets.

Although industrial espionage isn’t overly common, if you ever are a victim, you can rest easy knowing that you are protected under federal law. In fact, the Economic Espionage Act criminalizes the theft of trade secrets and punishes criminals by imprisonment and / or fines as long as the owner of the trade secret took reasonable measures to protect their secret.

Patent Advertising

An important reason to obtain a patent is for advertising. When you or your company can advertise that you’ve got a “patented” recipe, it may increase your brand’s awareness and lend credibility to your business. This is especially true for large food companies and restaurant owners.

If you need help with a patent claim, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top five 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, Stripe and Twilio.