Using a Utility Patent to Bring Your Food Innovations to the Marketplace

Using a Utility Patent to Bring Your Food Innovations to the Marketplace

by Tim Peterson, Esq., October 2019

Whether you've come up with an original method of food processing or a delicious new recipe, you should consider protecting your hard work with a utility patent. As one of the best ways to protect your intellectual property, a utility patent gives its owner the exclusive right to make, use, sell, or import the protected invention for a specific period of time, usually 20 years.

Using a Utility Patent to Bring Your Food Innovations to the Marketplace

The process for acquiring a utility patent can be complex—and there are several potential pitfalls that apply to food innovations in particular—so it's a good idea to have a solid overview of what you're getting into before you start down this path. That said, you don't want to wait too long to begin your utility patent application. The United States Patent and Trademark Office (USPTO) operates on the “first to file" system, which means that even if someone came up with an invention first, the first person to file for protection is the one who receives the utility patent and all its corresponding rights.

Requirements for Food Patents

The USPTO classifies food innovations under Class 426, which covers "products and compositions in any physical form which are intended to be consumed by human being or lower animals in whole or part via the oral cavity." This description includes recipes, certain kinds of food packaging, food processing, and any other types of “products or compositions" that otherwise meet the requirements of a utility patent, described more fully below.

The key to securing a utility patent for food and food-related innovations is that your proposed process, method, or recipe must be novel and nonobvious. The originality of a food composition means that it must be new, with some kind of characteristic or component that makes it different from everything that has come before it.

As an example, simply adding an ingredient not often seen on a hamburger, such as a fried egg, likely won't be worthy of patent protection. In 2009, however, Mark Murray did manage to secure a patent for his Hamdog bun, a “combination hamburger and hot dog bread bun," designed to hold a hamburger patty with a hot dog wedged through its center. How's that for novel and nonobvious?

Ironically, although the “nonobvious" requirement may seem somewhat obvious, the standard can also prove difficult to meet. Section 103 of Title 35 of the U.S. Code requires that the claimed invention must not have been obvious to a “person having ordinary skill in the art to which the claimed invention pertains." For food, this means you must show that another chef of ordinary skill wouldn't be able to look at your composition of food and be able to recreate it without guidance.

A proposed food innovation must also have some utility to qualify for a patent, which means that the invention must be useful in some way. You might be questioning the utility of the Hamdog bun right now, but rest assured the USPTO saw its purpose and approved.

The Application Process for a Patent

How you get a utility patent follows the same basic procedure as for any invention. First, you should make sure no existing patents already cover your food innovation, which you can do by searching the USPTO database on its website.

Once you're sure your invention has not been patented and is both novel and nonobvious, you must write a utility patent application, which you then submit online to the USPTO. Along with the appropriate fee and any other documents the USPTO requests, your application must include a written specification outlining the details of your innovation. Drawings or images of your product are highly recommended and can make or break your case, so you should pay special attention to this step.

Once the application is submitted, the USPTO either approves or rejects it. If it's the latter, you can respond to the deficiencies noted by the examiner and submit an amended application.

Food Ideas and Intellectual Property

It is important to note that food ideas cannot be patented. In fact, no ideas can be protected under intellectual property law—not even with a copyright, which requires that an idea be in a fixed form before it may be protected. That means that, as “a mere listing of ingredients," a recipe is not copyrightable, although the USPTO states that if the "recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, copyright protection may be available."

Also note that you can certainly sell food without a patent—and many people do. There's no law that says you must have intellectual property protection before proceeding with your food business. You should also consider the fact that, in order to apply for a food patent, you have to make your innovation's details public, which you many not want to do if your idea contains a secret ingredient or confidential blend of herbs and spices.

If you're contemplating whether or not to apply for a utility patent for your food innovation or simply would like guidance through the process, you can use an online service. However, working with an attorney experienced in writing patents can help make sure that you secure the necessary protection for your innovation.