Are you creating a recipe that you believe the world has never tasted before? You may have a delicious unique concoction on your hands, but in order to patent it, your recipe must be considered new, unexpected and useful. Home cooks and professional chefs have been mixing ingredients for thousands of years, so creating something completely new is not easy. If your prescription does not meet these qualifications, there are other legal safeguards you can use to claim the prescription as your own. Read on to learn more about patenting a recipe.
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Part 1 of 2: Find out if your recipe is patentable
Step 1. Understand what makes something patentable
Section 35 USC 101 in patent law states that "Anyone who invents or invents a new and useful process, machine, manufacture, or composition of material, or improvement of a new and useful, may obtain a patent for it, subject to the terms and conditions." Recipes can fall into this category in two different ways, because they are always useful, they may involve new processes or techniques, and fall into the composition of materials. All this means to suggest that a prescription may indeed be patentable as long as other conditions are met.
Step 2. Determine if your recipe is new and different
In legal terminology, "new and different" refers to something that never existed before. This is the tricky part of patenting a recipe. It is very difficult to determine whether a mixture of certain ingredients has been used in someone's kitchen before. There is some form of research you should do to find out if your prescription is new enough to be patented.
- Search the United States Patent and Trademark Office databases to see if your prescription has been patented.
- Search for your recipes in cookbooks and the internet. If you find the recipe in one of these places, you may not be eligible for a patent because the patent or existing recipe would be considered "disclosed" if it had been published elsewhere.
- If you can't find an exact replica of the recipe, you can proceed to determine if your recipe meets other qualifications.
Step 3. Determine if your recipe is unexpected
If your recipe involves a technique or combination of ingredients that results in something unique and unexpected, your recipe may be patented. However, if your recipe is something that other people can easily think of, or involves a technique that leads to predictable results, your recipe may not be patentable. Since most recipes created by home cooks do not come as a surprise to experienced cooks, they are usually not patented.
- Food companies are more likely to create patentable recipes, because they are able to use experimental processes and ingredients that lead to unexpected results. For example, a recipe that can be patented might use a new technique to last a long time on store shelves.
- Just adding a unique ingredient to a recipe isn't unexpected enough to make a recipe patentable. For example, an experimental home cook might decide to add cinnamon to a meatloaf recipe. While the results may be surprisingly delicious, most home cooks can predict the change in taste that will result from adding cinnamon.
Part 2 of 2: Filing a Patent
Step 1. Determine the type of patent you need
There are several types of patents available and prescriptions can fall into several categories of patents. Usability Patents protect the discovery of useful new applications. This includes new methods, processes, machines, manufactured goods, devices or chemical compounds or new improvements to any of the above items or processes. Most recipes fall into the Use Patent category unless you plan to package the final product in a unique package that also requires a patent. In this case you will also apply for a Design Patent.
Step 2. Find out where you need patent protection
Patents can be filed either in the United States or globally. If you feel your prescription needs international protection, then you should apply for a global patent.
Step 3. Work with a lawyer to file your paperwork
There are patent attorneys who specialize in filing the necessary documents for the United States Patent and Trademark Office. While you are of course allowed to submit your own documents, the patent office recommends that you hire a lawyer at this stage to handle the flow of documents and make sure you submit all the necessary materials. Regardless of who made the actual filing, the papers are then submitted electronically to the patent office.
- This application can be obtained from the United States Patent and Trademark Office website, at uspto.gov.
- Patent applications must be filed either online or by regular mail (note that filing online saves you a $400 filing fee).
Step 4. Wait for your application to be approved or rejected
The US patent office will consider your paperwork and determine if your prescription qualifies for patenting. If approved, the patent office will contact you. After you pay the processing and publication fees, your patent will be granted.
- If your application is rejected, you have the opportunity to appeal the decision or make any amendments that the patent office may suggest. You can then resubmit your application for review once again.
- If your application is rejected but you still want to protect your prescription, you can do so by declaring the recipe a trade secret. Those who know the secret will be asked to sign a confidentiality agreement, and this way you can prevent leakage of your prescription.
