The internet is littered with food blogs; television channels are devoted to the preparation and consumption of food; people snap pictures of their meals to post on Instagram and debate craft cocktails. All this interest in making and trying new foods raises the question: can you patent a recipe?
The short answer is yes – in theory.
New technologies for combining traditional ingredients might be patentable, but recipes might be difficult. The U.S. Patent and Trade Office issues patents to any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” and, while a recipe may be a useful composition of matter as contemplated by the USPTO, a patentable invention must have other characteristics that are harder for recipes to demonstrate.
Patents are granted to inventions that are “new and non-obvious.” The USPTO has granted food related patents, such as the formula for Pop Rocks and the method for making a sealed, crustless peanut-butter-and-jelly sandwich (although the latter patent was eventually revoked because the sandwich wasn’t sufficiently novel). When it comes to recipes, these attributes are harder to demonstrate. For instance, most cakes involve a combination of flour, sugar, butter and eggs, so it may be hard to show that a recipe for any specific cake is either novel or non-obvious. To receive patent protection, a recipe must involve a non-obvious process like those used in molecular gastronomy chef Ferran Adria’s recipes for transparent ravioli and olive oil caviar. The recipes must involve both non-obvious methods of production and ingredients that differ significantly from the ordinary.
Some recipes are entitled to other kinds of protection; some recipes, like the formula for Coca Cola or KFC’s original recipe, are considered “trade secrets.” Trade secrets are typically a combination of ingredients that set one business’s method of preparing food apart from others. Trade secrets offer more protection than patents in some ways. Patents are public, so if a business were to try to patent a recipe, the ingredients would become public. While competitors would have to refrain from making the recipe during the life of the patent, they would be free to reproduce the recipe after it expired. A trade secret allows a business to protect its recipe indefinitely, although it does not prevent others from independently discovering or reverse engineering a recipe or invention.
So, if you are an ambitious chef with a unique process, you might be able to obtain a patent; but, be aware that the test is a high hurdle to clear.
