Can You Patent a Food Idea

Posted by Damian Roberti on

All right, so in this video, I'm gonna answer the questions, can you patent a food idea? This is something that a lot of you have actually requested and wanted to know about. So I'm gonna dive into four specific factors that would actually allow you to get a patent for a potential recipe. Now, those four things are quite involved so you wanna stick with me all the way through this video, 'cause I'm going to explain to you what those four things are and what you need to do in order to make sure that you have it done right. And the other question was, how much does it cost to get a recipe patent?

That is something that, of course, a lot of you who are just starting a food business may or may not have the budgets for. So in this video, we're gonna dive into those four specific things, we're gonna get into that right now. Welcome back to marketing food online. It is Damian and in this video, as I mentioned back in the introduction, I'm gonna cover those four specific things that you need to cut in place in order for you to submit an application, to get a food recipe patented. Now, the question off the top you had, can you actually patent a recipe? Yes, you can, but there's a few things that you need to know before you can actually do that. And welcome if you are brand new to Marketing Food Online, make sure you hit that Subscribe button, definitely hit the bell notification. We have over a thousand videos for the food entrepreneur, and if you are just getting started in your food entrepreneurial journey, this is definitely the channel you wanna subscribe to because we have a lot of resources and our website at marketingfoodonline.com. And if you need any consultations, we also offer consulting services as well. And lastly, if you wanna listen to us on the go, check out those links down in the description section for our podcasts, I believe we're on now 10 or 11, 12 different platforms and you have an opportunity to listen to us on the go. So, let's dive right into it. The subject matter of your recipe must be patentable. Most recipes actually will qualify as palatable subject matter because they contain ingredients and a method is employed to prepare the components. Now, because the ingredients are created and how they are cooked and prepared falls under a process, most recipes will qualify as a patentable subject matter. In other words basically the recipe are unlikely to be rejected since they do not contain patentable subject matter. However, recipes must still meet the other conditions outlined below and let us dive into those. All right, so number two, your dish must be unique. Now, what does that mean? The criteria for uniqueness for recipes merely means that the recipe is brand new. A recipe must be novel under the, what they call 35 USC 102 which means that the invention or recipe must have never existed before. So it gets more difficult to apply this condition when it comes to recipes, do the ingredients have to be the brand new or does it combine with other ingredients in order for it to be brand new? That's the question. So the quick answer is that the ingredient mix, excuse me, the ingredient mix, as well as the amount of ingredients must be unique. For example, increasing the amount of sugar, in let's say a cheesecake, can make it sweeter and even adding peanut butter creates an additional, totally new cheesecake and that creates a unique variety of cheesecake. Okay, one that's never been done before. So that's where the additions come in. To be able to be patented, your recipe, you must first make sure that no one else has already done so. All right so a basic search of the USPTO patent database will actually reveal whether or not a recipe has been patented. Now, in addition to searching the USPTO database, you should also check the internet to discover if the recipe you're trying to get patent has already been published. Because if it were to be, then that would obviously mean that you have to transition it to something else or add something else to it. Now, if someone else has already patented or published the recipe, precisely as you produced it, it may not actually qualify for a patent. That's where it gets a little tricky. So this is especially true if someone else has patented first and plus, in addition to, if someone has published the recipe such as putting it online, the patent office will consider it published or quote unquote disclose and no longer patentable. So the idea is this, once an actual recipe gets published, even if it happens to be online, that creates a uniqueness about that recipe. In order for you to create something unique, you'd have to have an additional ingredient or process added to it, which would distinguish yours from somebody else's. Now, really quick disclaimer, before we get deeper into this, I am definitely not a patent attorney or lawyer, but I do know a lot about patents 'cause I actually have several of them. I had completed a patent 2000, I think 13, 2014, and it took quite a few years to get it. And it was extremely expensive. I went through a lawyer to have it done, and it actually costs me quite a bit of money, but it was definitely well worth it because not every patent that gets submitted gets approved and a very small percentage of applicants actually ever get a patent. So this is a little bit of the experiences that I have actually experienced with a lawyer in the USPTO office. But again, seek out specific legal advice from a patent lawyer. If you wanted to go further with this, I'm definitely not a lawyer, I'm a business guy, a food entrepreneur with the e-commerce businesses, definitely not a lawyer. So let's keep going with this and I'll explain a little bit more about how this works. However, if your recipe differs in any way from what has already been published or from the recipes that have already been patented, this is actually good news for you. Since you may be able to actually patent, if you meet the remaining requirements, okay? Now, an adventure wanting to protect his recipe must not have publicly revealed, sold, or even offered the recipe for sale. This is really important. For more than a year prior to submitting a patent application, when you do that with the USPTO office, this is actually part of the novelty investigation so the patent office may refuse to grant you a patent if you disclosed your recipe more than a year ago. So definitely not something you wanna tell a lot of people, if you've created one. Number three, your recipe should be unique. Now, Damian, what does that mean? That's kind of vague. You must show the patent office that your recipe was not evident at the time you actually filed your patent application in order for it to be patented to put it another way. So if your recipe is a parent, such as an adding additional strawberries to a strawberry cheesecake, let's say, the patent examiner will claim that anyone might have thought of it. That's something that could have been thought of beforehand and wouldn't work. And thus, it will deny your patent application. Understand what I'm saying? So when determining whether a recipe is non-obvious like that, a standard of an average person in the field of the invention is used to assess the recipe. So for recipes, this is a skilled cook or with an average amount of talents and such in the field of recipes who would know more, adding one ingredient to recipes, such as cinnamon to cheesecake is rarely enough to actually give it non-obvious. And basically because of that, a cook making or hypothetically making a cheesecake adds extra cinnamon could easily have thought of that. So that's where this kind of gets really tricky as far as trying to patent it. Adding additional sugar to a cake and ends up making it sweeter or something like that, the patent examiner is unlikely to grant a patent based on this, because a good cook knows that adding more sugar obviously is something that makes the cake sweeter so that wouldn't grant you a patent. So, how do you get this done then?

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So something unexpected must be included in the recipe. So the more components you utilize, the more likely you are to be able to get a patent for your recipe, because it becomes less obvious and to more experienced cooks, they'll see that. Number four, so your recipe should be practical. Now this is kind of a trickier one too. So despite the fact that most inventions are not challenged on the grounds, that they are not beneficial, we felt that it was necessary to inform you that it is a prerequisite. Before you even get this up and running useful, simply applies that the recipe must have a measurable benefit and be able to be implemented. So as long as you're having a working recipe, you've fulfilled that condition. So keep that in mind as well, to the description of your patent, you should also include the instructions, this is really important on how to use the recipe, not just the recipe. Although the chances of the patent officer rejecting your recipe patent based on the grounds that is not helpful or useful, you should clarify how it has beneficial and meets the criteria. All right so remember all at all, can you patent a recipe, Damian? Yes you can. To be honest with you, is it that something that you really need to do in order to protect it? It's kind of really up to you, but it's not necessary in order for you to have some type of legal protection, or if it's something that you wanna invest the money in, because in order to do this right, I would highly recommend that you tap into legal advice. Of course, getting legal counsel that can cost a bit of money. So, how much does it cost to get a recipe patented? This can be an open-ended type of question only because for me, it costs me over 13 or $16,000 to get what I had to get done. And some food recipes you can actually get done anywhere from about 2000 up to about five or $8,000. Now it depends on the legal service and what they charge you per hour or by case. And of course the duration of time. It took us to go back and forth when I applied for my patent, anywhere from, I think it was about four years. Three or four years back and forth because the attorney was between us and of course the patent office. So information would go to the attorney, they had to draw up and draft the actual drawings themselves, and then they had to send it out to the USPTO, and then that came back. So, the back and forthness of what you have to do is quite extensive. I personally would say, don't worry about it and don't do it if you don't necessarily need to, just because of the cost. If it's something that you really believe in, you wanna try to keep it isolated, you wanna make sure you have legal protection of it, go ahead and do it. But the idea of proving all of those things that I just talked about, those four different variations and different criteria, it's very, very challenging and jumping through a lot of hoops to do that. So that is my advice, if you have any questions on patenting a food recipe, remember you can definitely let us know down below, definitely get yourself a lawyer and specifically ask them a little bit more information about it, specifically, a patent lawyer. And they'll be able to answer questions more specifically. So, I'll see you guys on our next video. Listen to "Marketing Food Online Food Entrepreneur" on Spreaker.

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