Patenting Flavors and Taste Profiles
Are Flavors and Tastes Patentable?
Thousands of patents have been issued to protect various aspects of food and food products. Patents also protect methods of manufacturing food. Several weeks ago, our firm posted a short article about patenting food. We noted that foods could be patented as “compositions of matter.” Since publishing that article, we have received some questions about whether products like Coca-Cola are protected with patents. We’ve also been asked about whether it is possible to patent flavors and tastes. Below, we provide some brief remarks.
Coca-Cola Uses Trade Secrets to Protect its Formula
Coca-Cola protects its Classic beverage formula by keeping it a trade secret. As such, Coca-Cola illustrates an alternative to patent protection—trade secret. Coca-Cola purposefully avoids disclosing its formula, relying on the assumption that no one can copy it without being given the secret recipe. Visitors to the Coca-Cola factory in Atlanta, Georgia are shown a massive security vault that supposedly holds the secret recipe for Coca-Cola.
Keeping their recipe a trade secret only protects the recipe to the extent that other companies cannot figure it out. The weakness to this approach is that trade secrets are only as good as competitor’s analytical techniques are bad. And, analytical techniques are improving every day.
Patents provide a different sort of protection. Rather than relying on secrecy, patents reward inventors for disclosing the invention. In exchange for disclosing the invention in a patent application, the government rewards the inventor with the exclusive right to make, use, or sell the invention for a period of time. Two key differences are as follows:
- a patent gives the inventor the right to exclude others from using the idea where as the trade secret provides no such right; and
- a patent only lasts for a limited time, whereas a trade secret can exist indefinitely.
Accordingly, a person inventing a new flavor or taste profile must choose between patenting the invention versus keeping it as a trade secret. That decision would probably turn on how difficult the flavor is to figure out without knowing the secret. As pointed out above, analytical techniques have improved dramatically since the days Coca-Cola was invented. With the benefit of today’s technology, it would be possible to identify minuscule amounts of a secret ingredient by using combinations of chromatography and mass spectrometry. Although a copyist may not hit on the exact same recipe, they could get close enough to bring the battle to the marketplace. Patents provide a way to keep your competitors far far away.
Patenting Flavors Provides Advantages
For an inventor who has invented a new flavor, the patent system may provide significant advantages. For example, the inventor should be able to describe how the new flavor differs from others that have come before it. Here, it is particularly advantageous to look at the differences in molecular composition because those differences offer incredible opportunities for drawing quantifiable distinctions from the prior art. With those differences in mind, the inventor could draft patent claims, which define the inventor’s broader contribution. (Not just the exact commercial product but also knock off products).
Drafting claims that leverage underlying differences in molecular composition could prevent copyists from making products that are similar, thereby offering a broader ranger of protection. This illustrates the greatest advantages of patents versus trade secrets: Patenting the new flavor invention provides the inventor with the right to exclude competitors; whereas keeping the invention a secret relies on the inventor’s hoping that no one figures out the secret sauce.