Food Patents – Can I patent a food or recipe?

Patenting Foods and Recipes

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.”

Can I patent food?

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 ofteatent 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.

Thinking Small

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.

Food is patentable

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.

38 Responses to “Food Patents – Can I patent a food or recipe?”

  1. Sung Park says:

    Hello.
    I am trying to get a patent on food.
    Please contact me for discussion.
    Thank you so much

    • Andrew Chadeayne says:

      Hello Sung — I am happy to hear that you are innovating in the food technology space. We will contact you to see if we can help you capture your contributions.

    • Krishna yadav says:

      can I get a patent for my mother’s recipe for a traditional food which is not so popular and known. what will be thankful advantage by patenting. is it not better to keep the recipe secrets and just sell the product.

  2. william yates says:

    i’m interested in a food patent, please contact me at yopur early convience

  3. Lauren Watson says:

    Please contact me at your earliest convenience.
    I am interested in learning more about your services.

    Thank you,

    Lauren

  4. Shene Nix Jr says:

    I would love to discuss about getting my food idea patented. Please contact back.

  5. Genie Patrick says:

    I am trying to learn more about your seizes and offers being I am trying to patent a sauce

  6. Genie Patrick says:

    I am trying to learn more about your service and offers being I am trying to patent a sauce

  7. Dallas Green says:

    I would like to discuss a food patent for a new type of popcorn I invented. Can someone please contact me to help see if it’s worth pursuing?

    Thanks,

    Dallas

  8. Sharon says:

    I would like to speak with someone about a food item. It isn’t a new food it’s a new recipe.

  9. Mario says:

    I’m trying to see if I can patent a food, please contact me mario@wn.com

  10. kimberly w says:

    I would love to know more about a food patent. Please contact me with information. Thank you.

    • Andrew Chadeayne says:

      Hi Kim,
      Sorry for the slow response. Could you send us an email or request a consultation? That will get you a call.

  11. We have a recipe for crumbs, I have been selling it as a coating for fish and has taken off now someone wants the recipe for a 5% equity in his business, our concern can we patent this to protect the receipt before we make the deal. We live in Canada

  12. Lakeyica Darget says:

    I make really healthy but tasty soups, mostly seafood, not big on meat.Every time I do everyone loves it, even the kids. It’s full of veggies and Kids still love it.Please help, I may be on to something.

  13. Oliver Jiang says:

    Hi I would like to learn more about food patents. I have an idea that I think can be great. Thanks!

  14. Steve Cratty says:

    I have a recipe that I would like to sell please let me know what steps involved to see if I can do it

  15. Jack Alexander says:

    I have an innovative concept to alter the ingredients of an existing food product. My recipe is totally new having never before been altered. The end product has never, to my knowledge, is completely unknown. I am hoping that my concept can be granted a patent. Can you help?

  16. Luis Lebron says:

    I have been working on a sweet and spicy recipe for months that has many health benefits. I would like some assistance on learning how to patent my recipe to create a product out in the market.

  17. Lamont Howell says:

    I need some information about how to patent a food idea.

  18. sara says:

    My husband wants me to patent his ice cream recipe. how do i complete this task?

  19. Helen Nicole says:

    I also want to patent on food . can you take me a few recipes? send me your email, we discuss. oklaaa?

  20. Ramon D. Barney says:

    greetings. I have a food idea I am thinking about patenting. or marketing to a restaurant.
    Can someone help??? Thanks.

    Ramon

  21. I have a new type of pepper sauce which shows very good future prospects, before I take the next step, I’d like to be advised as to whether my sauce can be patented.
    I would appreciate your comments, please contact.

  22. Jasmine says:

    Hello, I am interested in patenting a food and have a few questions on how to describe the product

  23. Cameron Williams says:

    Hello Im thinking of getting a patent on food I was wondering if you could help me sort it contact my email please so we can discuss it.
    Thanks!

  24. Tiffany LeValley says:

    I am interested I learning more about getting a patent for a recipe or two. Please contact me as soon as possible. Thanks.

  25. sandra grey says:

    Hello, I’m try to learn how to patent a recipe. Please contact me. Thanks

  26. Demetrius King says:

    Please notify me with information as I am trying to patent spice blend recipes to sell. Doing very well in trial tastings and people love the flavors. Interested in pursuing profits.

  27. Axel Caparros says:

    I would like to patent a new drink recipe, may you please contact me. I need some info as well

  28. Juan E. Jiménez says:

    I have invented a new product for household and institutional use, which I wish to patent and wish to be informed as how best to dirctly go about it since I lack the resources for hiiring a patent lawyer. Can someone out there help me.

  29. catherine Harris says:

    I’m interested in getting a patent. And getting my product marketed and into stores

  30. Lali says:

    Hi, I am trying to file a food patent. Hence please contact me.

  31. sandy richardson says:

    I have a creamier twist on a favorite comfort food.

  32. Teddy says:

    Hi i am looking to patent the process of my food instead of the recipe. Is there someone on here that can help? It would be extremely appreciated.

  33. jean says:

    Hello. I would like to consult with you regarding a new food idea. Also, I am curious what country you are in.
    Thank you for your consideration.

  34. Pino says:

    “Instead of qualitatively explaining why certain recipes are better, the inventor could point to concrete molecular differences.”
    This is one of the most intriguing thing I’ve read lately! I’m trying to understand that though: it means that you need to have two very detailed laboratory analysis for both the new and the “old” recipe? It looks very expensive… Or am I getting it wrong?
    Thank you

  35. Irene wilson says:

    I have an old recipe that alters a present food item. Can I alter a present food item with other ingredients to enhance the flavor and sell it without repercussions of the current food item?

    Please let me know about this particular question.

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