If you own a restaurant or food company, your recipes are your lifeblood. They create your raving fans and generate revenue. There may be something about your recipe that is unique, out-of-the-ordinary, and worth protecting. After all, you’d never want a competitor to learn your secrets only to use them against you.
Patents are legal protections that ensure an invention (including a recipe!) cannot be sold, distributed or even made without permission of the patent owner. That makes them a powerful tool for a business. But before you pursue this high-level protection for your recipe, there’s much to consider.
With so many guidelines required for intellectual property law, it’s difficult to know whether or not protecting your recipe is worth your time, energy, or money. At Wilson Dutra, we’re here to provide all the information you need to pursue your vision with confidence.
Can You Patent a Recipe?
Yes, it is possible to patent a recipe, although it can be quite difficult. Patent laws generally protect new inventions of all sorts, including products, designs, and processes. Recipes can be patented with what’s known as a “utility patent”, which is defined as a new process or as a new “composition of matter.”
Before you can apply for a patent application, there are some basic requirements to keep in mind for your recipe to qualify, according to the USPTO (United States Patent and Trademark Office).
It Must Be Novel
For your recipe to be considered novel, it must be set apart from all other recipes that already exist. You won’t be able to patent a classic recipe that is already well-known to the public, or one that has been previously documented, discussed, or sold somewhere else.
That may feel like a high barrier, but it is also possible to patent a recipe which includes a new process to improve on a past recipe. The process could include the manufacturing of the product. This usually applies if your recipe addresses a previous problem, such as shelf-life. You must still ensure that your process is unique from others already in use.
It Must Be Useful
To obtain a patent, an invention must be useful and it must work. Most recipes meet the requirement of usefulness. But you must ensure your recipe includes complete instructions and that it works as intended.
It Must Be Non-Obvious
Your recipe patent application can’t be obvious to another expert in the field, such as a chef. Even if your recipe is different from other publicly-known recipes, it cannot be patented if there is no unique aspect to it that other culinary experts would not have already considered. Essentially, your recipe will fail this test if it is obvious or if another chef could create it using simple common sense. One way to meet this criteria is to create something that is counter-intuitive or that defies expectations.
One good example is a “sealed, crustless sandwich.” (Think Smucker’s Uncrustables). It’s essentially just a peanut butter and jelly sandwich — one of the most commonly known recipes of all — except for the crimped edge on the outer perimeter. This special edging allows for longer periods of storage without the contents leaking. While the patent pursuit for this particular aspect of a twist on a classic was eventually abandoned, it still serves as a prime example of what companies are trying to argue is not an obvious improvement over previous versions.
Is A Patent Worth It?
While the level of protection provided by a patent is great, filing can take years worth of time, work, and money. It can be difficult for recipes to achieve all the requirements needed for a patent. Not to mention, patents are public for the world to see. That means your secret recipe will no longer be secret.
If you have a truly novel and innovative recipe you could use in your business, then filing for a patent as quickly as possible is recommended. But if you have any doubts, there are other avenues of intellectual property protection you may want to consider.
Can You Trademark a Recipe?
Unfortunately, you can’t trademark the recipe itself. A trademark is a different type of intellectual property that protects certain words, symbols, or phrases in connection to a specific brand, good or service.
That said, you can trademark a distinctive name to accompany your recipe. While this process will not prevent others from recreating or copying your dish or food item, it will protect the specific name that you choose for your recipe.
In addition to a name, it is also recommended that you create unique branding for your recipe. While this step is not required, it will allow you to further set your dish or item apart from the existing or future recipe ideas of others.
How to Protect Trade Secrets
Even if your recipe isn’t eligible for a patent through the USPTO, you can still protect it through what’s known as a “trade secret.” Trade secrets protect secret information and are a type of intellectual property right. This option may be preferable to a patent if you want to keep your recipe a secret. Unlike trade secrets, patents also eventually expire. This is something to keep in mind when thinking about when trying to determine the long-term protection strategy for your recipe.
Many well-known recipes are protected with trade secrets. This form of protection should be considered if multiple employees or staff members have access to confidential information related to your recipe.
Employees or staff with access to your recipe must sign a confidentiality agreement, also known as a nondisclosure agreement (NDA). This serves as a contract between multiple parties that your confidential information will remain secret.
Confidentiality agreements should also be required for vendors or outside parties that are involved in creating your recipe or dish. This way, you can ensure that your recipe is protected on all fronts, and any confidential information cannot be legally disclosed or distributed by anyone with access.
If you ever need to enforce your trade secret in a court of law, it’s crucial to show you made full effort to protect it. Consider employee training to relay expectations and emphasize the importance of confidentiality. You might also consider restricting access to sensitive information from individuals who have not signed NDA contracts.
Schedule an Intellectual Property Consultation in Jacksonville, FL
Deciding which form of intellectual property protection to pursue can feel impossible, especially when your business is at stake. Fortunately, you don’t have to make that decision on your own. Schedule your initial IP evaluation with Wilson Dutra Law. Our experienced patent attorneys (who welcome any food samples) will help you every step of the way.