Onnit’s New Mood – A New Nutraceutical Composition Comprising Natural Ingredients
I just came across New MOOD. New Mood is a supplement made by Onnit. Onnit claims that New Mood improves your mood and reduces your mental stress. Sounds awesome, right? I think so, especially because I am interested in the patentability of nutraceuticals and nootropics.
After a quick look at the New Mood technology, my two big questions are as follows:
1. Could Onnit patent this?
2. Does New Mood really work?
1. Patenting a combination of known, naturally occurring ingredients
From what I can tell, New Mood is a combination of known, naturally occurring ingredients. Normally, so-called “products of nature” are not patentable. (A product of nature is not new. A product of nature is not “man made.”)
However, in the case of New Mood, the naturally occurring ingredients are combined into a specific formula that is NOT found in nature. Accordingly, it is “man made” and (potentially) new.
2. Does New Mood Provide Unexpected Results?
It’s possible that the answer to question #2 determines the answer to the question of patentability. Here’s what I mean: If New Mood really is a “gamechanger,” like Onnit claims, then that “game changing” achievement could help them earn a patent on the composition.
Provided that the New Mood composition is “new,” then the question of patentability would probably turn on “obviousness.” Here, I think the question of patentability would depend on whether this particular combination provides some sort of unexpected results when compared to the known properties of the ingredients.
I’m eager to learn more about this invention. Is it a”game changing” technological advance or a clever marketing campaign? The former is probably patentable. The latter is probably not.
Nootropics are also called “smart drugs” or cognitive enhancers. The term “nootropic’ covers drugs, supplements, or other substances that improve cognitive function. In particular, these substances improve so-called “executive functions” such as memory, creativity, or motivation.
Examples of known nootropics include caffeine, modafinil, the racetams (e.g, piracetam, aniracetam, phenylpiracetam), nicotine, amphetamines, various, psychedelics, and many plant derived extracts and supplements.
Recently, ebbu, the leader in engineered cannabis products has figured out how to make formulations that enhance creativity and focus without the undesired side effects often associated with cannabis.
The Neurohacker Collective offers a product called Qualia, which they define as “a supplement stack with 42 ingredients that will optimize every major system of your brain so you can be more productive and create more impact in the world.”
Research and development in nootropics appears to be growing rapidly. And rightfully so. Who wouldn’t want a simple way to enhance cognitive function? Now, the question on my mind: Can we patent these nootropics?
Patenting Nootropic Innovations
Nootropic research interests me for two reasons — one personal and one professional.
Personally, I like the idea of supercharging my brain. Taken to the extreme, is there a supplement that would help me learn things faster? Could I learn Brazilian Jiu Jitsu techniques in a few minutes instead of a few months? Ideally, I would like to learn things as rapidly as my 8 month old.
Professionally, I like the field of nootropics because of the opportunities for creating patentable subject matter.
Nootropics can be claimed as compositions of matter. Compositions of matter patents are my favorite because they define the invention chemically. (I love chemistry and chemical patent law). Also, I think composition claims are among the strongest claims available to an inventor because they cover all uses of the claimed composition.
Patenting New Formulations of Naturally Occurring Compounds
I’m also interested in nootropics because many of them appear to be found in nature — in plants and fungi. That creates some interesting questions of patentability. Here’s why: A natural product cannot be patented. It’s not new. It has been around forever in nature. And under US patent law, only new things can be patented.
However, while the naturally occurring form of the nootropic cannot be patented, newforms or formulations of the nootropic can be patented. Accordingly, if researchers discover a cognitive enhancer in some naturally occurring mushroom, they could not patent the mushroom itself. (It’s not new). But, they could probably patent purified forms of the nootropic and/or new formulations using that nootropic. They could also pursue new methods of purifying the nootropic and/or formulating it. In each case, the critical question is whether the “invention” is the product of human engineering. (For a related discussion, see the uproar over Nestle and its patents related to the Fennel flower).
Likewise, a company like Neurohacker could seek patent protection for their Qualia product– assuming that their combination of 42 ingredients is a new combination. Provided that the combination is new, the major hurdle to patentability would probably come down to whether that combination would have been “obvious” when the Neurohacker researchers made it.
At a high level, I cannot think of too many 42-member combinations that are “obvious” to formulate without some sort of guidance. Nevertheless, the invention would be evaluated at the U.S. Patent and Trademark Office by the legal standard of obviousness. Under that standard, I suspect that the inventors could demonstrate that their combination is not obvious by providing evidence about how that combination optimizes every major system of the users brain and/or makes the user more productive and/or allows the user to create more impact in the world.
Written by Andrew Chadeayne, April 14th, 2017 | 1 Comment »
Yes, Brazilian Jiu Jitsu inventions are patentable.
One example of a Brazilian Jiu Jitsu patent is the Elite Intensity Band. According to their website, Elite Brazilian Jiu-Jitsu has developed and patented a system to provide a clear visible indication of the level of intensity at which each member wishes to train. “By having a standardized method of measurement for intensity our members can help each other calibrate, our Professors and Coaches can help make better match ups, and new members feel more comfortable participating in the sport knowing there is awareness and process to reduce injury and ensure the best experience for all members.”
Elite Intensity Band
How Do I Patent My BJJ Invention?
The inventor of new BJJ gear can draft patent claims and file a patent application directed to that new technology. To be patentable, the BJJ technology must be “new.” In other words, it must be different from all BJJ technology existing before it.
In addition to being “new,” the invention must not be an obvious variation of BJJ technology that existed when the new BJJ technology was invented. The legal test for obviousness is often very complicated. The test of “obviousness” is called the Graham Test, which we wrote about it in an early post.
As a rough guide, an inventor should be able to receive patent protection on any significant improvement over the state of the art. (For example, a better mouth guard, a new fabric, or a new design for a training tool). In the case of BJJ gear: the greater the difference from existing gear, the more likely it is that the invention can be patented. Also, if the invention provides an unexpected benefit beyond similar BJJ gear, then it is probably patentable.
Subject to the above requirements (new and not obvious ), most categories of BJJ gear could give rise to patentable subject matter. For example, innovations in clothing (such as the gi, rash guards), training aids (such as grappling dummies), diagnostic tools (such as video analytics software), equipment (such as mats, clocks, tape, safety gear), chemicals (such as nutrition, sports drinks, sanitizers), and personal care items (such as cleaning wipes or rash cream) could all be patented. Below, I’ve discuss another category of patentable subject matter that creates some interesting questions: Could someone patent methods (aka “processes”) for jiu jitsu? What about methods of teaching or training jiu jitsu?
What about Patenting BJJ Techniques?
In my mind, one interesting question involves patenting BJJ techniques. New BJJ techniques are appearing every day. For example, last night I watched a video of Eddie Bravo teaching rubber guard to Rickson Gracie. (Granted the video was from 2014 but it illustrates innovation in BJJ techniques).
In theory, a truly new BJJ technique could be patented. It would be a NEW method of self defense. Provided that it wasn’t obvious, that method would fulfill the requirements for patentability (New and not obvious). In theory, the patent holder could exclude others from using the technique. Crazy right? Here’s how it would work:
Presumably, at some point, Eddie Bravo’s rubber guard was new. At that time, Mr. Bravo could have filed a patent application on that rubber guard technique. Once granted, Mr. Bravo would have owned the right to exclude all others from practicing/using the rubber guard.
In the case of Mr. Bravo’s rubber guard, patentability is now a moot point. It’s not “new” anymore because more than one year has elapsed since the invention was publicly disclosed on Youtube. Nevertheless, the academic questions about patenting a BJJ technique remain: Could one of the many innovative BJJ practitioners exclude others from using a new technique they develop? Or, could they charge a royalty for using that technique?
Thankfully, I suspect that patenting BJJ techniques will remain a purely academic question. For the patent geeks out there, I’ve included the video below so that you can think about how Mr. Bravo’s disclosure probably satisfies all of the written description, enablement, and best mode requirements within a publicly available time-stamped disclosure. You might also notice how Mr. Gracie’s reaction seems to support the notion that the technique was NOT obvious at the time. (Think “skepticism by experts”).
Written by Andrew Chadeayne, March 27th, 2017 | 1 Comment »
Chadeayne LLC Offers Discount on Patent Services to Support Local Inventors
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Chadeayne LLC is a patent prosecution firm with offices in Issaquah, including one just off of Front Street. Our firm’s mission is to help inventors define and protect their ideas by using the patent system. We focus on one thing: turning your product or idea into patented property. Like most of you, our CEO Andrew Chadeayne, also wears many hats. He is an inventor, entrepreneur, chemical patent expert, and President of SwimSpray LLC.
Discount for Local Inventors
During November 2016, Chadeayne LLC is offering a 30% discount on our services for local inventors.
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Written by MaryKate Pennington, October 31st, 2016 | No Comments »
Mushroom or fungus inventions fall into one or more of the following four categories:
Compositions of matter;
Methods or Processes;
Plants or Living organisms; and
Machines or Devices.
All four of these categories of invention are potentially patentable. The critical questions for patentability is whether the invention is both (1) new and (2) non-obvious. Of these, composition of matter claims are particularly valuable because they cover all uses of the composition. Below, I briefly explain each of the four categories of patentable subject matter.
Patenting Mushroom Compositions
New mushroom compositions are potentially patentable. To be patentable, the composition must be manmade–in other words, not naturally occurring.
Isolating a specific compound from a mushroom would create a new patentable composition because the purified form of that compound would be new. Similarly, creating an unnatural combination of mushroom compounds would give rise to a new, patentable composition. Even though the individual components were known, that particular combination did not exist before the inventor prepared it.
Examples of patentable compounds would include a purified form of an individual molecule found within a mushroom. Such a molecule could have a variety of uses, such as a drug candidate.
New combinations of fungal materials could also be patentable, such as within supplements. For example, Fungi Perfecti makes a wide range of products comprising freeze-dried mushroom mycelium/fruitbodies. Provided that Fungi Perfecti chooses particular non-naturally occurring mixtures of the fungi, those products would be patentable as new compositions. Again, even though the individual components were known, that particular combination did not exist before the inventor prepared it.
Additionally, new compositions useful for cultivating mushrooms would be patentable provided that those compositions were not previously disclosed prior to the invention. Here, new formulas for enhancing mycelial running or fruitbody formation would be patentable.
Patenting Mushroom Devices
Devices invented for mushroom cultivation are patentable. Patentable devices could include tools or machines used in cultivating or harvesting mushrooms. For example, devices for sterilizing equipment, purifying air, facilitating spawning, and/or initiating fruitbody formation.
Some examples of inventions that would fall under the category of “device” include improvements on spawn bags, filter patches, humidifiers, flow hoods, lights, hydrometers, etc..
Patenting Fungus Processes or Methods
Inventive processes for cultivating and harvesting mushrooms are patentable. For example, in 2005, Stewart C. Miller patented a process for growing morels. The process involves inoculating tree seedlings with morel mycelium, then allowing the mycelium to grow, and lastly killing the seedlings to induce the morels to fruit. See US Patent 6,907,691 and
US Patent 6,951,074.
Methods of using fungi are also patentable. For example, Paul Stamets has patented a method of attracting (and killing) harmful insects by using the non-sporulating mycelial stage of insect-specific parasitic fungi. See US Patent 6660290, entitled “Mycopesticides.”
Patenting Genetically Modified Fungi
New, man-made organisms can be patented. Accordingly, the inventor of a genetically modified fungus could apply for a patent on that organism. Here, the inventor would probably also seek a patent on the method for making the new GMO fungus. This technology has recently become important within the context of genetically modified foods. Specifically, the CRISPR/Cas9 edited mushroom was engineered to that resist browning when exposed to air.
Written by Andrew Chadeayne, October 23rd, 2016 | 2 Comments »
Food and food technology are both patentable. Patenting a new invention is one way for a firm to stay ahead of competitors. Many inventors never consider patenting food technology. Many wonder whether food is patentable at all. To be clear, anything new and not obvious is potentially patentable. Including food and all of the technology relating to food. For example, methods of preparing food, equipment, software, and novel compositions. Below are five current examples of exciting technologies and innovations within the food industry.
1. Patenting Sous Vide Technology
Sous vide is a French technique where cooking is done through the use of an immersion circulator. Food is placed into a plastic bag, air is removed, and placed into a water bath at a precise temperature. The immersion circulator keeps the water at a precise temperature gently cooking the food all the way through.
The technology is expensive and was relegated mostly to restaurants. However, a number of retail products have become available (e.g., Joule, Anova, and Sansaire) that are relatively affordable and growing in popularity.
New food preparation devices are patentable
While the general technology is not new, improvements made to the technology are new. These new advances are potentially patentable, as long as the advances are new and not obvious.
2. Patenting Smaller Versions of Large Scale Equipment
Larger scale, industrial equipment is often very expensive. Using this technology for producing foods on a smaller scale for the average cook is often cost prohibitive. Improving equipment for cost effectiveness is patentable.
For example, a conche (Indi Chocolate) is a machine that distributes cocoa butter within chocolate to develop flavor and texture. The process is so important, that many chocolate manufactures keep their conching process secret. See https://indichocolate.com/collections/chocolate-making-machines/products/wonder-grinder-model-2
Products like these may seem niche, but there is a growing trend amidst home cooks and chefs wanting to have control over the quality of their ingredients. Improvements to existing technology may focus on either home or restaurant use. Many home cooks may not want to make their own chocolate, but smaller restaurant, cafes, or bakeries are potential users.
3. Patenting Phone Apps and Devices for Food Preparation
Within the context of food technology, smartphones are used for setting a timer, for grocery shopping, and organizing recipes. But smartphones are rarely for preparing food.
For example, a thermometer that plugs into your phone. A growing trend is integrating smartphone technology into appliances. Samsung has a new oven connecting to a smartphone allowing controlling temperature, measuring food weight, and calculating calories.
4. Patenting Gluten Free Products and Compositions
Gluten free diets are a growing trend. Most grocery stores have specific gluten free sections. Maintaining gluten free diet is difficult because gluten is found in most foods. For example, wheat is used as part of the fermentation process for soy sauce. Many foods contain flour as a thickening agent and for maintaining food’s structure. Cross contamination becomes a risk for naturally gluten free foods exposed to gluten comprising foods.
Gluten free food technology could especially be valuable in the area of baking because gluten provides pastries, breads, and pizzas their structure. Gluten free technology is patentable by patenting the chemical composition. The chemical makeup of these products must be unique, i.e., never disclosed before.
5. Patenting Novel Food Compositions, Such as Aquafaba
Vegan diets are not just for ethical reasons but also for food sustainability reasons. Maintaining a vegan diet is difficult because animal based products are used in many foods. Eggs have many chemical properties that are hard to find in other ingredients. Some attempts for replicating these chemical properties are using various starches or other hard to find substitutes. But a recent discovery could change everything.
Aquafaba – the liquid from cooking legumes, like chickpeas – has similar properties as egg whites. Experts believe that the protein and starches in Aquafaba mimic the proteins in egg whites. For example, whipping Aquafaba to make meringue. Developing Aquafaba technology could benefit millions of vegans by producing protein compositions. Advances in this area is patentable. New forms of Aquafaba could give rise to patentable compositions of matter.
Conclusion – Food and Food Technology is Patentable
Food technology is an enormous and growing industry. Even more remarkable–this industry is just beginning to tap into the opportunities available for protecting and monetizing technology by using the patent system Patents provide a powerful tool for those creating new and not obvious inventions.
This post was written by Alex Kong, JD. Mr. Kong is an associate attorney at Chadeayne LLC with a background in chemistry and specialty in food technologies.
Written by Andrew Chadeayne, September 01st, 2016 | No Comments »
Yes, a brewer can patent beer. Similarly, the inventor could pursue patents for new methods of making beer or new devices for making beer. Those patents give the inventor the right to exclude others from making or using the invention without permission. The idea is that the inventor should have the right to own the idea for a limited time in exchange for bringing it into the world.
The rapidly evolving Extreme Brewing community embodies innovation. Brewers are constantly seeking out new— different — beers. Accordingly, the industry is constantly inventing new technology.
Beer can be patented as a composition of matter, giving the brewer ownership of that recipe
To receive a patent on beer, the inventor (i.e., the brewer) would benefit from claiming it as a new composition of matter. The brewer should draft patent claims, defining the beer and showing its inventive features. The claims should emphasize how the new beer differs chemically from all others that came before it.
For example, the beer could differ on account of using different ingredients. Or, it could differ on account of selecting particular varieties of amounts of traditional ingredients. For example, particular types and amounts of hops, herbs, spices, yeasts, and barley give rise to unique chemical properties. Those sorts of innovations would justify a patent on the new composition of matter. For a brewer who creates something truly innovative, claiming the invention chemically could provide the best way for capturing the value of that contribution.
A chemical invention from start to finish
Each of the components used to brew can be defined chemically. Then, during the brewing process, these ingredients undergo a variety of chemical transformations. For example, during fermentation, yeast converts carbohydrates into ethanol and carbon dioxide. Ultimately, the brewer enjoys a finished product, having its own chemical composition.
Often, new foods and beverages are readily distinguished based on their molecular components. Each of these distinctions provides an opportunity for patenting the invention. The brewer creates inventive subject matter every time he deviates from traditional recipes or methods. Recently the TV Show Brew Dogs discussed adding kelp to beer. Dogfish Head Brewing recently t introduced a beer with garlic. And Ballast Point is currently serving a beer called “Red Velvet,” which is made with beets and chocolate.
Ballast Point is serving a “Red Velvet” Beer made with beets and chocolate
An inventor of new (different) beer ideas can apply for a patent on those ideas.
Why bother patenting beer?
Many brewers scoff at the idea of filing a patent. Or they find the idea immoral or untrue to the community. Practically speaking, filing a patent application (on any technology) only makes sense if the invention is truly new and better. (Something known or obvious cannot be patented). If the invention meets those criteria, then filing a patent application would give the inventor the option for preventing competitors from practicing the invention. The inventor/patent holder would get to decide who gets to use the invention. For example, a small brewer with a patent could prevent (or demand royalties) if a large commercial entity began copying the invention.
What’s the process for patenting beer?
After drafting claims, the inventor would file them as part of a patent application at the United States Patent and Trademark Office (“USPTO”). During patent prosecution at the USPTO, the application would be examined by an examiner. The inventor would have the opportunity to explain why the beer is both new and innovative (i.e., nonobvious). After convincing the examiner of the newness and nonobviousness of the beer, the examiner would allow the claims. The inventor would then receive a patent on the new beer composition.
I’ve seen this making the rounds and thought it was give some folks a holiday laugh…. If anyone knows the author, I’d love to give credit.
Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter, the “House” a general lack of stirring by all creatures therein, including, but not limited to, to wit, a mouse.
A variety of foot apparel, e.g. stocking, socks, etc., et al., had been temporarily affixed by and around the chimney in said House, with appropriate care, in the hope and/or belief that St. Nick a/k/a St. Nicholas a/k/a Santa Claus (hereinafter, “Claus”) would arrive at sometime thereafter.
The minor residents, i.e. the children, of the aforementioned House were located in or around their individual sleeping locations, or beds, and were nestled and engaged in nocturnal hallucinations, i.e. dreams, wherein visions of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums (without and not meeting FDA labeling requirements) did dance, cavort and or otherwise appear in said dreams.
Whereupon the party of the first part, (sometimes hereinafter referred to as I (“I”)), being the joint owner or tenant-in-common in fee simple absolute of the House, with the party of the second part, (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep (at such time, the parties of both parts were clad in various forms of headgear, e.g. kerchief and cap) for a long, seasonal (“winter”) nap.
Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance (“clatter”). The party of the first part (“I”) did immediately arise and rush to a fenestration (“window”) in the House to investigate the cause of such disturbance. In the process, the party of the first part (“I”) mistakenly tore open the shutters and threw up the sash.
The party of the first part noticed the moon, in full phase, on the topmost part of the new-fallen snow. The party of the first part was informed and believed, and based upon such information and belief, alleged that said moon gave the lustre of mid-day, otherwise known as noon, to objects below. At that time, the party of the first part (“I”) did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter the “Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.
Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co-conspirator named “Rudolph” may have been involved.)
The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the top of the porches, walls and/or roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.
Said Claus was clad in a red fur suit with white fur, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe, and blowing circles that resembled wreaths in blatant violation of local ordinances and health regulations.
The party of the first part observed that Claus’s eyes would not have passed a field sobriety test in that they twinkled. Moreover, Claus’s facial expressions (i.e. “dimples”) appeared overly joyful. As further evidence of his state of being, Claus’s cheeks were very red, almost like roses, his nose was likewise red like a cherry. Claus’s mouth could have been said to look like a bow, and the extended hair growth under his chin could likewise be said to be as white as the snow.
Although Claus did not speak, he did laugh, which caused his rotund stomach area to move about in a manner similar to, but not quite like, a bowl full of jelly. Claus thereafter immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.)
Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.
However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!”
An article on SwimSwam describes the “Brick” kickboard as the world’s first-ever coreboard. The Brick is a 6 lb weighted kickboard, which allows the user to “turn any kick set into a total body workout that actually changes a swimmer’s body position in the water.” These benefits are said to be lasting—”even after the kicking is done.”
The Brick was developed by Fike Swim Products. Unlike other kickboards, the Brick is said to “float just enough to support its own weight, so it sinks when a swimmer places his/her arms on top, forcing the swimmer’s core, upper body, and legs to work to maintain body position on top of the water while kicking.”
Photo of Brick coreboard that was published on SwimSwam.com
Based on the description above, this sounds like an exciting and patentable new technology.
I say “exciting” because I like the idea of getting a total body workout during kick sets–I usually kick without a board so that I get a better all-around workout. This board could be a step beyond that!
I say it’s probably patentable because the Brick is described as the “first ever” of it’s kind and those differences appear to provide some benefits beyond anything that’s come before it. Now they just need to convince an examiner at the patent office that the Brick is “new” and “not obvious.”
Written by Andrew Chadeayne, September 03rd, 2015 | No Comments »
Recently the Huffington Post published an article on an ingenious new food that gets kids to eat their broccoli. When I see achievements like this, I always wonder whether the inventor filed a patent application on the new technology.
Foods are patentable, just like any other composition. The patent laws do not distinguish a food simply because we eat it. Rather, the law would classify food as a composition of matter. At the United States Patent and Trademark Office, food recipes would probably fall under Patent Class 426: “Food or Edible Material.”
A new food can be patented as a composition of matter.
Food is Patentable as a Composition
Under U.S. Patent law, an inventor can patent a process, machine, manufacture, or composition of matter. The food must be new, useful, not obvious, and meet the other disclosure requirements for patentability. However, the critical point remains the same: Food can be patented. The patent laws do not discriminate food from any other composition of matter.
The Food Must be “New”
Only new inventions can be patented. This is ofte atent application35 U.S.C § 102. Often, a “new” food is difficult to distinguish from a prior art food. For example, an inventor may struggle to differentiate a truly innovative soup from all prior art soups that came before it. For a truly new soup, drafting a successful patent application depends on the inventor’s approach to drafting claims.
A clever way to distinguish one food from another is to describe it at the molecular level. In the soup example above, understanding how one soup differs in molecular composition would provide a powerful means for defining the differences. Instead of arguing why certain ingredients are subjectively better, the inventor could objectively quantify the improvement. Instead of qualitatively explaining why certain recipes are better, the inventor could point to concrete molecular differences. Defining a food invention in terms of it’s molecular composition provides a significant advantage when arguing for patentability during patent prosecution.
The greatest challenge is explaining why a new food was truly innovative. Here, Chef Peter Wong worked with some unique combinations of ingredients at the 2012 DC Chili Cook-off in Washington, DC.
The Food Must be “Non-Obvious”
For most inventions, obviousness is the critical hurdle to getting a patent. The non-obviousness requirement for patentability is set forth in 35 U.S.C. § 103. In short, the inventor must show that the food would not have been a trivial or routine advance beyond other previously disclosed foods. This area of patent law is very complicated for a variety of reasons. The undisputed standard for evaluating whether an invention is obvious can be found in the Supreme Court’s 1966 Graham v. John Deere decision.
The Inventor Must Adequately Disclose the Food.
In order to receive a patent, the inventor must provide a comprehensive disclosure of the invention. The inventor must also teach the public the best way to make and use it. In the case of a new food, the inventor must teach the public how to make it without “undue experimentation.” The recipe must be something that can be reproduced by someone having ordinary skill in the industry. This disclosure rbargain an inventor accepts when applying for a patent. The inventor must give up the secret recipe in exchange for a limited period of patent protection.