Food Patents Beyond Trade Secrets

A common myth in the culinary and food technology sectors is the belief that trade secrets are the sole form of intellectual property (IP) protection for food-related innovations. While it’s true that trade secrets play a vital role in safeguarding proprietary recipes and techniques, they are not the only arrow in the quiver. Enter the underappreciated hero: the utility patent, often overlooked yet powerful in protecting edible inventions and food-related processes as useful inventions. This includes edible material, edible products, new ingredients and substitute ingredients in your food product and invention.

Do you have questions about protecting your food invention and filing a patent application to achieve a food patent? Ask us here at Verna Law by sending an e-mail to anthony@vernalaw.com or by calling us at 914-908-6757.

What Exactly is a Food Patent?

Contrary to popular belief, the realm of patent law, governed by the United States Patent and Trademark Office (USPTO), warmly embraces the food industry. Food patents, encompassing everything from novel food products to unique processes and compositions, are a testament to this inclusivity of food-related inventions. These patents are not just pieces of paper; they are catalysts for innovation, offering inventors exclusive rights to their creations and encouraging them to share their breakthroughs with the world.

Choosing Between Patent Protection and Trade Secrets

Deciding whether to pursue a patent or maintain a trade secret is a strategic choice, often dictated by the nature of the invention itself. For technology that can be easily reverse-engineered once in the public domain, a patent provides a robust shield. However, for processes or recipes that can be kept under wraps indefinitely, a trade secret might be the way to go. Remember, though, that a staggering 60% to 70% of what companies consider trade secrets may not qualify due to insufficient measures to maintain secrecy.

A Deep Dive into Patent Types for Food Innovations

The USPTO’s Class 426 covers a broad spectrum of food-related technologies, from new compositions and processes to innovative products. The golden rule? Your invention must be novel, non-obvious, useful, and fully disclosed. Don’t forget about design patents, which protect the unique visual aspects of food items or packaging, complementing utility patents that cover functional attributes.  The best patent for a food item is a composition of matter patent.  A food recipe is generally not patentable subject matter.

A composition of matter patent is a type of utility patent granted for new and useful chemical compositions or mixtures of substances. These patents cover materials created by combining two or more substances that produce a unique chemical makeup. This can include chemical compounds, mixtures, and composites. Creating a new composition in the food industry will help with patentability.

Key Aspects of Composition of Matter Patents:

1. Novelty: The composition must be new and not previously known or used by others. It should not have been disclosed in prior art or public knowledge.
2. Non-Obviousness: The composition must not be an obvious result of combining known substances. It should involve an inventive step that is not apparent to someone skilled in the art.
3. Utility: The composition must have a specific, substantial, and credible utility. It should be useful for a practical purpose.
4. Description: The patent application must include a detailed description of the composition, including the components, their proportions, and the method of combining them.

Examples of Composition of Matter Patents:

• Pharmaceutical Compounds: New drugs or medicinal formulations.
• Chemical Compounds: New molecules or chemical mixtures.
• Materials: New alloys, polymers, or composite materials.
• Biotechnological Inventions: New genetic compositions, microorganisms, or biochemical compounds.

Application Process:

1. Patent Search: Conduct a thorough search to ensure the composition is novel.
2. Patent Drafting: Prepare a detailed application, including claims defining the scope of the patent.
3. Filing: Submit the application to the United States Patent and Trademark Office (USPTO) or relevant patent office.
4. Examination: The patent office examines the application for compliance with legal requirements.
5. Grant: If the application meets all criteria, the patent is granted, giving the inventor exclusive rights to the composition for a set period, typically 20 years from the filing date.

Benefits of Composition of Matter Patents:

• Exclusive Rights: The patent holder has the exclusive right to manufacture, use, sell, and license the composition.
• Market Advantage: Provides a competitive edge by protecting innovative chemical compositions.
• Revenue Generation: Can generate income through licensing agreements or by preventing competitors from using the patented composition.

In summary, a composition of matter patent protects new chemical compounds, mixtures, or materials that have been developed through innovative processes, providing the inventor with exclusive rights and potential commercial benefits.

When to File and What You Can Protect

Timing is critical in patent applications. Filing a provisional application early can safeguard your invention while you refine it, ensuring you don’t lose your place in line under the “first to file” principle. The scope of protection can vary widely, from novel food compositions and manufacturing processes to improvements in shelf life, flavor, texture, and health benefits.

There are some circumstances under which aspects of a recipe might qualify for a patent. Here’s a detailed look at the relationship between food recipes and patents:

Patent Eligibility for Food Recipes

1. Utility Patents: To obtain a utility patent, a food recipe must be novel, non-obvious, and useful. This means the recipe must include an innovative method of preparation or a unique combination of ingredients that offer a new and useful result. For example, a new process for making a type of food with improved nutritional benefits or a method that preserves food for a longer period could be patentable.

2. Design Patents: Although design patents primarily cover the ornamental design of an object, they can sometimes apply to the appearance of food products, such as unique shapes or presentations of food items. However, this is less common.

3. Plant Patents: If a new plant variety is used in a food product, it might be eligible for a plant patent. For example, a new strain of fruit used in a recipe could be patentable.

Examples of Patentable Food Innovations

• Unique Ingredients: Using a previously undiscovered or underutilized ingredient that offers health benefits or new flavors.
• Novel Preparation Methods: Inventing a new cooking technique that improves flavor, texture, or nutritional content.
• Combination of Ingredients: Combining ingredients in a way that hasn’t been done before and results in a new and useful food product.

Steps to Patent a Food Recipe

1. Conduct a Prior Art Search: Determine if your recipe or its elements have been patented before. This involves searching through existing patents and publications.

2. Prepare a Detailed Description: Clearly outline the unique aspects of your recipe, including the ingredients, preparation method, and the final product’s characteristics.

3. File a Patent Application: Submit your application to the United States Patent and Trademark Office (USPTO) or the relevant patent office in your country. This will include your detailed description, claims, and any necessary drawings.

4. Examination Process: The patent office will review your application to ensure it meets all requirements. This process may involve back-and-forth communication to address any concerns or rejections.

Examples of Patented Food Recipes

• Patent US20170290327A1: This patent covers a unique method for producing a dough-based food product that is shelf-stable and has a particular texture.
• Patent US8778441B2: This patent describes a novel process for making a gluten-free bread that mimics the texture and taste of traditional bread.

Navigating Novelty and Obviousness

The bar for patentability in the food sector is high, focusing on whether an invention achieves a new, unexpected utility through the unique combination of ingredients or processes. This principle challenges inventors to transcend conventional wisdom, seeking out synergies that offer distinct advantages. Most food patent applications will be subject to obviousness rejections for the patent claims.

Maximizing Your Innovation’s Potential

Securing a patent not only provides legal protection but also enhances your branding and market presence. It signals to competitors and consumers alike that you’re a leader in innovation. With the food and beverage industry continuously evolving, from plant-based alternatives to functional foods, protecting your intellectual property is more crucial than ever.

The Bottom Line

Yes, food innovations can indeed be patented, offering a significant advantage in the competitive landscape. Whether you’ve devised a groundbreaking method of food processing or concocted a revolutionary recipe, a utility patent can safeguard your hard work on your innovative foods, ensuring you reap the full benefits of your innovation. Always consider consulting with a patent attorney to navigate the complex landscape of intellectual property law and make the most of your culinary creations.

Do you have questions about protecting your food invention and filing a patent application to achieve a food patent? Ask us here at Verna Law by sending an e-mail to anthony@vernalaw.com or by calling us at 914-908-6757.

Here are a few notable cases involving food patents:

1. Diamond v. Chakrabarty (1980): This landmark case did not specifically involve food but is pivotal for biotechnology patents, which include genetically modified food. The Supreme Court ruled that genetically modified organisms could be patented, setting a precedent for future food-related biotechnology patents.

2. Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012): While primarily about medical diagnostics, this case has implications for patent eligibility in the biotech and food sectors. The Supreme Court ruled that merely applying a law of nature using conventional steps is not patentable, impacting how patents in these fields are evaluated.

3. Monsanto Co. v. Geertson Seed Farms (2010): This case involved Monsanto’s genetically engineered alfalfa and the environmental impact of its potential deregulation. The Supreme Court’s decision emphasized the need for environmental impact assessments, which affects patents and regulatory approvals for genetically modified foods.

4. Bowman v. Monsanto Co. (2013): A key case involving Monsanto’s patented genetically modified soybeans. The Supreme Court ruled that farmers could not replant harvested soybeans without Monsanto’s permission, reinforcing the company’s patent rights over genetically modified seeds.

5. Frito-Lay North America, Inc. v. Medallion Foods, Inc. (2013): This case involved a patent dispute over a method of making corn chips. Frito-Lay accused Medallion Foods of infringing on its patent for a method to make reduced-fat corn chips. The court’s decision helped clarify patent protections in food manufacturing processes.

6. Impossible Foods Inc. v. Motif FoodWorks Inc. (2022): Impossible Foods filed a lawsuit against Motif FoodWorks for patent infringement, alleging that Motif’s meat alternative products used technology patented by Impossible Foods. The case highlights the growing field of patents related to plant-based and alternative meat products.

These cases demonstrate the broad scope of patent litigation in the food industry, covering genetically modified organisms, food production processes, and biotechnology innovations.

Do you have questions about protecting your food invention and filing a patent application to achieve a food patent? Ask us here at Verna Law by sending an e-mail to anthony@vernalaw.com or by calling us at 914-908-6757.