Everybody loves food, except maybe the United States Patent and Trademark Office. Restaurateurs and chefs have a notoriously hard time trying to patent their recipes, and most patent filings don’t result in securing successful legal protections.
Of course, the USPTO doesn’t actually hate food; rather, recipes simply don’t fall under the definition of a patent, copyright, or trademark. However, there are still ways to safeguard your intellectual property outside of getting USPTO or Copyright protections. Let’s demystify the patent protections process and learn how to keep your recipes safe.
How the USPTO Defines a Food Recipe
Before explaining the different types of intellectual property protections (IPPs), it’s important to understand how the USPTO views and defines a recipe. After understanding this definition, we can match up a recipe against each type of IPP.
Generally, the USPTO defines something based on its basic components. So, the USPTO breaks a recipe down into 3 things: the ingredients themselves, the processes these ingredients undergo, and the resulting dish in relation to these ingredients.
The Ingredients
Let’s say you’re trying to get legal protections on a BLT sandwich. The USPTO will first break down the BLT by its ingredients: bread, lettuce, tomatoes, bread, and mayo.
Then, the USPTO will ask if this combination of ingredients is unique. Of course, the BLT has been around for quite a while, so the chances are it won’t last long in a patent office.
The Processes
The USPTO will also look at what it takes to make a BLT. Are the ingredients processed in an unusual or novel way?
The steps to make a BLT are fairly simple. In fact, the only steps are to toast the bread and fry the bacon, neither of which are unique to the BLT, so its patenting success looks slim.
The Final Product
Lastly, the USPTO wants to know if the final product is unexpected and unique. Surprising foods are much more likely to be patented since they are more likely to be the novel invention of the chef.
A BLT’s end result isn’t all that surprising—after all, the final product is the name itself. You can’t get much simpler than a BLT, so there’s no way any restaurateur could win a patent for it.
Can I Patent My Food Recipe?
Most often, a restaurant owner will seek patent protections for their recipes. Patenting a recipe makes sense in theory, because a patent protects a unique product and allows the inventor to license and control that recipe.
Patenting comes with the most benefits for a chef, but also a lot of hurdles. In order to get a recipe patented, you need to prove that your recipe has two things: novelty and non-obviousness.
Novelty
Your recipe needs to be extremely unique in order for the USPTO to consider it for patenting. In this case, novelty means that the combination of ingredients and processes are so unique that no other recipe can be comparable.
Let’s return to the BLT example. You might try to patent a recipe that uses duck meat for bacon instead of pork. Assuming that duck meat can even be turned into bacon, the USPTO still won’t consider this “novel” because your recipe is similar enough to the conventional BLT.
Non-Obviousness
Non-obviousness refers to the finished product which, as previously mentioned, needs to be surprising or unexpected in some way. While duck bacon is surprising and unexpected, the finished product is still a BLT, which is what you would predict from these ingredients.
In short, most food recipes cannot be patented. You need to come up with a unique set of ingredients and processes, and the finished product needs to be both surprising and worth patenting. With so many variations of similar meals spread throughout the globe, developing a recipe that is both tasty and patent-worthy is a challenge for the ages.
Can I Trademark My Food Recipe?
No, you can’t trademark a recipe. Trademarks don’t have anything to do with recipes—a trademark protects your brand and image, which is distinct from the food itself.You can seek trademark protections for certain things related to the food, such as its packaging and design. In fact, successful restaurants will often trademark the layouts of their restaurants and the designs of their packaging so that nothing else infringes on their brand.
This is why no restaurant would be caught dead with the McDonald’s “M” in their name, nor can any restaurant reproduce the design of Coldstone’s Strawberry Passion ice cream cake. This also affects how food is presented – for example, the way a pretzel is twisted could be trademarked as part of the brand. However, when it comes to a recipe, trademarks just don’t apply.
Can I Copyright My Food Recipe?
What a patent doesn’t protect, a copyright might. Right?
Copyrights protect the authorship of a creative work. This makes it impossible to reproduce all or part of a certain, distinct element in a creative publication, whether that’s a novel, poem, painting, or song – such as the McDonald’s Big Mac recipe song!
To the chagrin of many chefs and restaurant owners, copyright very rarely applies to recipes. Although there is a creative art to making great food, this art isn’t protectable in what a recipe outlines. Recipes simply outline ingredients and processes, so what the recipe publishes isn’t considered to be the novel, inventive production of art—it’s simply a list of steps.
There are two exceptions to this. First, you can copyright a recipe if the finished product is intended to be an art piece. If the food is also modern art, and the food’s production is intended for artistic consumption (rather than physical consumption), then that food may be eligible for copyright protections. However, it is the food’s design that is being copyrighted, not the recipe itself.
Second, you can copyright a cookbook or a collection of recipes. Because this is considered a creative content publication, cookbooks are eligible for copyright protections. You can even trademark a series of cookbooks or blogs about food, provided these publications carry a distinct weight to your brand.
How Can I Protect My Food Recipe?
Just because your recipe isn’t eligible for protections from the USPTO of Copyright Office doesn’t mean you can’t protect your intellectual property. The best way to keep your recipe from falling into the hands of other people is through the power of trade secrets.
A trade secret is a way to keep your recipe from spreading. Basically, anyone who’s not a cook isn’t allowed access to the recipe itself, and the cook must agree not to tell the recipe to anyone. Trade secrets are protected by having your employees sign a confidentiality agreement which legally binds them to protect the information.
Although trade secrets don’t carry legal protections, they do have the following benefits:
- No legal fees (unless you draft a contract using a lawyer)
- Restricts competition for your recipe
- Effective immediately
- Gives you control over safety measures and repercussions
- Offers a marketing hook for your recipe
I Still Want to Protect My Food Recipe… Now What?
Do you have a food recipe that’s inventive, uses unique ingredients, and requires an original set of processes? If so, you may be eligible for patent protections, landing you in the same elite set of foods as Corn Flakes and Uncrustables.
The next step is to prepare for filing with the USPTO, and figuring out a defense for why your recipe is novel and non-obvious. Along the way, you may encounter legal questions or uncertainty about the patenting process. DiAngelo Law can help! Reach out today so we can assess your recipe’s eligibility for patenting, and let’s build a roadmap to a successful USPTO hearing.
