One of the most common questions we receive is whether a recipe can receive patent protection. As with most legal questions, the answer falls in a gray area of “It depends!” The technically correct answer is “Yes, your recipe could be patented!” However, the more accurate answer includes a caveat: “Your recipe may be patentable, but it is highly unlikely.”
Recipes typical fall within patent-eligible statutory categories, since a final food product is “a composition of matter,” and steps to create the food product represent a process. In the grand scheme of patentability, the recipe passes the first hurdle. However, to be patentable, the recipe must also be new—as in, no one has ever performed the steps and/or formed the product before—as well as nonobvious. The nonobvious threshold is often the death of a recipe patent.
The Obviousness Test
Under the Patent Office’s nonobviousness standard, an invention cannot be obvious to a person of ordinary skill in the art at the time a patent application on the invention was filed. Recipes are often a mixture of known ingredients added in varying quantities, and a series of known steps performed in a particular order. Accordingly, it is very difficult to overcome the “obviousness” threshold in a patent application. In other words, the sum is the expected result of the known components and steps. Recipes that do mature into patents are typically those directed to changes in the final product that would be unexpected prior to the creation of the invention—such as a food additive to prolong shelf life.
Overall, it is highly unlikely that a recipe can receive patent protection, especially a recipe created through trial-and-error in a user’s kitchen. However, if there is a change in property for the end product beyond what would be expected from the prior art, it is possible that your recipe can receive patent protection. In the end, though, a recipe is typically better suited to trade secret protection, such as that afforded to the unpatented COCA-COLA® formula.
The skilled intellectual property attorneys at Smith & Hopen can help advise you on how to best protect your recipe. Contact us to make an appointment!