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.”
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 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.