Can I Patent A Food Recipe?Since just about everyone has a favorite food dish, people often ask me if their secret recipes can be patented.
The answer is yes, they can. But like anything else that comes out of our heads, it also depends.
Preparing patent applications on food recipes that will have a strong chance of
succeeding can be a little tricky. No matter how tasty the dish or how much
people rave about it, your recipe must still meet the basic conditions of
patentability all other inventions must meet: The recipe must be useful, novel and
According to the U.S. Patent and Trademark Office, food
recipe patents fall under Patent Class 426 - Food Or Edible Material intended
to be consumed by human beings or lower animals in whole or part via the oral
So whether your recipe is for infants, deep sea divers or zoo
animals, as long as its intended for making a nutritional (as opposed to
medicinal) composition to be eaten by people or pets, then it passes the first
hurdle of being a food or edible material.
What Can Be Patented
Following are the two primary categories of food
patents. While patents can be obtained in either category, almost all food
patents comprise both:
1) Composition of matter
chemical compounds, food recipes are technically compositions - that is, methods
of combining certain ingredients to make something different. Thus the many
hundreds or even thousands of U.S. patents on food recipes in reality are new,
useful and non-obvious compositions of matter.
Lets say you have a new recipe for hot cocoa. If you're using some ingredients that have never been
combined before, or the order of combining them is new, and it's not obvious to
do so, then it's possible to get a composition of matter patent on that hot
cocoa recipe. So in preparing your patent application for that recipe, you would
ultimately be listing the ingredients and their proportional ranges - such as
one part sugar, two parts cocoa and between four and five parts
water. While that certainly describes a recipe, unless it has something
really inspired about it like mixing the ingredients in zero gravity for
unexpected results, it isnt patentable.
2) Process for making the product
If part of making a food product from your recipe is
heating it up or cooking it, then that step is a process. And if the method you
use to cook your recipe ingredients - or the precise order in which you add
foods together is new, novel and not obvious - then that process is essential to
Other processes that might make your recipe patentable
include (but are not limited to): heating, frying, sauteing, poaching, baking,
bottling, canning, aging, separating, blanching, stirring, grinding, whipping,
mixing, chilling, freezing, melting, dehydrating, soaking, cutting, layering,
stamping, molding, smoking and grilling.
Types Of Recipe Patents - What Has Worked
For some two hundred years, people in the U.S. have been patenting recipes. As you might expect, many food patents granted over the years tended to cover large-scale food production - such as mass producing cereal or cheese, or extending a foods shelf life with additives. Yet other
patented recipes, such as chewable tablets for astronauts (US Patent 6,149,939)
and dried food for arthritic pets (6,596,303), have a narrow audience.
While not a complete list, the following is intended to demonstrate the wide range of types of recipes that have earned U.S. patent protection:
I highly recommend you look at some of those for a sense of
patentable recipes and to see how the inventors kept their patent claims broad,
a topic I discuss next.
- Reduced calorie: A surge of these appeared in the 1980s and
continue with many hundreds of recipes for things like fat replacements
(5,466,479) and sugarless bakery goods (5,804,242)
- Microwavable: Sponge cake that can rise when microwaved (6,410,074)
- Texture: Ingredient replacing egg whites to reduce toughness of
batter coatings (6,288,179)
- Moisture protection: Preventing a cream filling from making its
outer bread layer soggy (5,145,699);
- Shelf life: Single-dough cookies that store well (4,344,969)
- Smoothness: Cooking process that improves mayonnaise (6,579,558)
- Flavoring: Additive that improves chocolate flavor in baked goods
- Shaping: Controlling cookie geometry (5,374,440)
- Convenience: Toaster cookies (6,093,437); ready-to-bake dough
- Appearance: Confections that swim in a carbonated beverage
- Special diets: Diabetic nutritionals (6,248,375)
- Combinations: Storing peanut butter and jelly in the same container
Making For A Strong Recipe Patent
The more novel and non-obvious the idea, of course, the
stronger the patent application. That goes equally for recipe patents as well as
all other inventions. If you come up with a totally new sugarless confection, or
dry-rub marinade that never existed before, or a substitute ingredient that
generates unexpected results, those would tend to become strong
Another thing is you want to write your patent claims so that
your parameters - ingredients, temperatures, cooking times - are as broad as
possible. This will also help reduce the potential of your competition writing
around your claims with small variations.
So if you're cooking a particular solution, then you want to say in your detailed specification
and in your claims, heated between a temperature of X and Y. If you're listing
quantities, also make those a range. For example, use wording like between 1
and 1.5 parts water, and approximately 2 parts sugar. You don't want to claim
an exact amount that someone could modify only slightly to avoid infringing your
Common Errors To Avoid
The most common error people make preparing a food recipe patent application is missing the
non-obviousness requirement. The test is, would your recipe be obvious to
someone skilled in the art of cooking? The answer must be no. For example, if
you merely take food items off the shelf and mix them without doing anything
special to the process, then your invention does not reach the level of
non-obviousness required for patentability.
Also, people fail to think of substitute ingredients that may be equivalent to the ones they're disclosing and thereby make their ingredients too narrow. Sure, sugar works great, but so might
honey, corn syrup or molasses. If thats the case, just say ‘sweetener when
describing that ingredient. Does your recipe require pecans? If walnuts or
almonds might work, then just say nuts.
Remember The Basics
Above all, in your excitement to patent your recipe, don't
forget the basics of patent law. For example, people will often try to patent
recipes from their ancestors. You can't do that for a couple of reasons. First,
a patent can only go to the inventor, meaning you cant patent your Grandma
Frannies sugar cookie recipe. Second, if thats been in your Grandmas family,
it implies the recipes been long disclosed. As we all know, upon any public
disclosure inventors get only 365 days to submit a patent application on the
Further, say you bake the worlds greatest blueberry pie and take
it to a church function. Even if you dont divulge the ingredients, is serving
that pie a public disclosure? The answer is yes. When a composition is made
available even when the ingredients aren't disclosed, that is public
Great recipes are like belly buttons - everybody has one. Coming up with a new food, significant improvement, or uniquely new way to make it, is a challenge. But dont let that stop you. Many are the inventors with great recipe ideas who never filed a patent application, and are later
devastated to see their ideas for sale by others.
Not only may your food recipe be patentable, it may be the best thing since, well, sliced bread.