For those who watch Shark Tank you have probably seen Mr. Wonderful, or the other Sharks ask the Entrepreneurs whether they have patent protection, or what is proprietary about their product. However, when it comes to food, how are these individuals able to protect their cupcakes, chips, or #BBQ sauce?
According to 35 U.S.C. 101 patents may be granted for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” If we break down a food product or a recipe it typically has three components that make up the final product which are: 1) a list of ingredients; 2) instructions on how to combine the ingredients and how to cook them; and 3) the final product ready to consume. The list of ingredients can fall under the composition of matter, or a method to manufacture. The way the ingredients are combined or prepared can fall under the process. So, according to 35 U.S.C. 101 the recipe can be considered patentable subject matter.
However, to be patentable the recipe must also be “novel” and “nonobvious” which falls under 35 U.S.C. 102 and 35 U.S.C. 103, respectively. This means that the recipe cannot have ever existed before, nor can it be an obvious improvement of another recipe that exists, which is determined by someone who is skilled in the art of cooking. So, when looking at the recipe and whether or not is patentable you must look at whether it is an obvious improvement of another recipe, or if someone skilled in the art would easily combine the ingredients to get the recipe.
People have been cooking since the dawn of time and combining different ingredients together. This makes it very hard to determine whether your #recipe is patentable since it probably has been done somewhere in the world. In addition, if the final product is merely adding more sugar, or salt to make the cookies taste better, but it does not give it a unexpected result. Someone skilled in the cooking or #culinary arts could have easily added more salt or sugar to a recipe. Most of the recipe patents issued today are recipes that are done in a lab, rather than on a kitchen counter, so the chances of getting a recipe through the USPTO are very slim.
However, a patent is not the only way to protect your recipe, and it may not be the best way to protect your recipe since patents only give 20-years of protection. Another option for your recipe is with a “Trade Secret.” The Uniform Trade Secrets Act of 1984 defines a “Trade Secret” as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Assuming that you have not publicly disclosed your recipe, or are just taking it off the internet then your recipe satisfies the first requirement. The second requirement requires you to reasonably protect the recipe and maintain its secrecy. A good example of this is Coca Cola. Coca Cola holds the recipe for Coke in vault in #Atlanta, Georgia. Originally Dr. John S. Pemberton, who invented coke in 1886, kept the formula as a close secret only giving the recipe to a small group, and it was never written down. Similarly, with your recipe you can keep it as a trade secret, and build your brand around the recipe like Coke, KFC, and many other companies.
However, in order to maintain the recipe as a trade secret, you need to take some precautions to prevent disclosure and others from getting it. Some typical precautions include:
1. Informing employees, business partners and others who will see the recipe and how to make it and that it is the companies secret and valuable to the company;
3. Keeping the recipe in a safe, or password protected file on your computer and limiting those who have access to it.
You will need to put up all the proper fences around your recipe to protect it from others. If you are interested in protecting your recipe using trade secrets you should be aware of how to do it, and that trade secret laws vary state to state.