How to Get a Patent on a Food Product

Since the beginning of civilization humans have been innovating upon food and drink.

Making jerky from meat, fermenting grapes into wine, and selectively breeding the best grains are all inventions that would be worthy of a patent if invented today. Although humans have been inventing food products for thousands of years, there are still limitless possibilities for patenting food and food related products.

This article examines how the patent system applies to inventions related to food including drinks, plants, food processing, and even the appearance of food.

Can You Patent a Food?

Yes, you can patent a food. When, how, and what patent to file will vary depending upon the type of food related invention you have created.

Why patent? A patent is used to prevent others from copying your invention and making or selling it. An inventor would file a patent if they plan to commercialize their invention. An inventor should first consider how to commercialize their new food invention and if filing a patent is worth it.

When to patent? A patent should be filed before a public disclosure is made about the invention. If you plan to show off your invention at the world cooking exposition, you should file a patent before presenting it to others.

It is important to verify that your food invention is eligible for a patent before continuing the patenting process. A patent attorney is the best person to provide advice and help determine what aspects of your food invention may be eligible for a patent.

You may be able to file a utility, plant, or design patent covering your food related invention.

The eligibility criteria for a food related patent is the same as for other patents. Eligibility criteria for a patent includes subject matter, novelty, nonobvious, and usefulness.

Subject Matter Eligibility

To be eligible for a utility patent a food related invention must be either a process, machine, manufacture, or composition of matter.

A design patent must be for the ornamental design of the invention. A design patent protects the aesthetic appearance of the invention.

A plant patent covers any distinct and new variety of plant which has been asexually reproduced.

Novelty

The invention must be novel, meaning new and never having been done before. Get familiar with the term “prior art” before you begin the application process.

Prior art is any published literature describing any part of your claimed invention. Patent examiners spend a lot of their time searching through data bases to find prior art. You may not obtain a patent on anything that exists in the prior art. Prior art includes patents, patent applications, non-patent literature, and anything else that is publicly available.

Nonobvious

The invention must not be obvious. Obvious to whom? The United States Patent and Trademark Office (USPTO) uses a standard called a Person Having Ordinary Skill In The Art (PHOSITA).

If a PHOSITA would find the invention obvious, then it is not eligible for a patent. What a PHOSITA would find obvious varies with the art category and is subject to some debate.

A PHOSITA in the art of food related inventions would vary based on the invention. A PHOSITA of genetically modifying a new food would be different than a PHOSITA of baking a new type of cake.

Useful

The invention must be useful. This is an extremely low bar to meet, nearly anything can be considered useful.

Food Patent Examples

Humans consume a wide variety of things for food. For each food product we eat there are many patentable inventions associated with the production, harvesting, processing, preparation, and presentation of the food.

Consider the different possible ways a patent can protect your invention. You may file multiple types of patents on the same invention or break down a complex invention and patent each individual aspect in a separate application.

Food Products

Yes, you can patent food products. A food product is something humans consume orally, including liquids. A utility patent directly protecting a food product would require the food is either a new composition of matter or a new manufacture. This protection would work well if you just discovered a new edible composition of matter or manufactured a new type of food.

• Food additive.
• Lab grown meat.
• Processed hummus.

A utility patent can also indirectly protect your food product if it is related to a process or a machine. Say you created a new machine or process to turn apples into apple juice. You cannot patent the apple juice as a manufacture because apple juice is not new, but you can patent your new machine or process.

• The process of producing a food additive.
• The method of growing meat in a lab.
• The machine that processes hummus.

Food products can also be protected with a design patent. If the food product has a significant aesthetic characteristic, it may be worth protecting under a design patent. If a bakery makes a new design for the way a bagel looks, a design patent would prevent other bakers from copying that design. A design patent can also protect packaging, arrangement, and display of food products.

• Frosting design on a cookie.
• Shape of a pasta noodle.
• Arrangement of a fruit platter.

A plant patent can be used to protect food products that come from plants. You may file for a plant patent after developing a new variety of plant and asexually reproducing it. The plant patent protects all parts of the plant including the fruit and anything else edible. Plants can also be protected under a utility patent if they otherwise qualify.

• A new variety of apples.
• Sugarcane that contains more sugar.
• Purple spinach.

Frozen Foods

Yes, you can patent frozen foods. You can also patent frozen food related inventions such as better insulated packaging.

• Frozen berries (plant patent).
• Design of a frozen dessert (design patent).
• Frozen lab grown meat (utility patent).
• Process to freeze dry more effectively (utility patent).

Food Recipes

Yes, you can patent a food recipe. A food recipe is a process for preparing food and patentable as a utility patent. Sometimes the best protection may be to not file a patent and keep your recipe as a trade secret like Coca Cola or KFC’s 11 Herbs & Spices.

• Formula for a drink.
• Recipe for hot sauce.
• Instructions to bake a chicken pot pie.

Food Preservation Methods

Yes, you can patent a food preservation method. A food preservation method is a process for preserving food and patentable as a utility patent. Keeping the steps in a food preservation process secret may offer more protection than filing a patent for the process.

• Method of sun-drying fruit.
• Pasteurization process.
• Canning technique.

Food Packaging

Yes, you can patent food packaging. Food packaging may be protected by a utility patent if the packaging offers a new benefit, such as more volume per shelf space. Food packaging may also be protected by a design patent, which protects the aesthetic appearance of the packaging.

• The shape of a bottle (design and/or utility).
• More breathable packaging (utility).
• Color layout of the package (design).

Design vs. Utility vs. Plant Patent for a Food Invention

What type of patent to file? Utility, design, and plant patents are all applicable to food inventions. A patent attorney is the best resource to help determine which type of patent would best protect your invention.

A utility patent protects the functional aspects of the invention, a design patent protects the aesthetic appearance of the invention, and a plant patent protects the plant (including fruit).

For illustration, consider the following example. You have a garden where you breed tomato plants. You breed a new variety and asexually reproduce it. As you run test on the new tomatoes you discover it contains a new flavor compound. You make a new machine that turns the tomatoes into sauce, dehydrates the sauce, and presses it into tomato shaped balls. You plan to sell these dehydrated sauce balls at the grocery store.

Different parts of the invention may qualify for a different type of patent.

Food related patents cover a wide range of inventions and fields, it is important to consider the nature of the invention when deciding what patent to apply for.

If the invention does not have a physical appearance, it would be difficult to obtain a design patent. Say that your invention is a set of instruction of how to bake a cake. A utility patent could effectively protect the new method of baking the cake, but a design patent would serve little purpose.

Alternatively consider that your invention is a new design for a cake’s icing. The design doesn’t use any new type of icing or new method to apply it, but it does look different than any cake’s icing before. Here you probably can’t get a utility patent, but a design patent would cover the aesthetic appearance of your cake and prevent others from copying your designs.

If your new food invention comes from a plant, it may be protected by a plant patent or a utility patent. Consider a new variety of oranges that produce twice as much juice. A farmer who created this variety by cross breeding then asexually reproducing her plants would file for a plant patent. A scientist that achieved this by inserting a new gene into the plant, or via a new growing technique would file for a utility patent.

Some inventions are best protected by not filing a patent. Keeping your invention as a trade secret may allow you to protect it far longer than a patent would allow. Secret recipes such as for Coke or KFC’s herbs and spices have allowed these companies to maintain a monopoly over their product longer than a patent would allow.

Determining the best way of protecting a food related invention can be a difficult decision. It is highly advisable to consult with a patent attorney. A patent attorney will consider your invention, and what you plan to do with the invention to provide guidance on which type of patent offers the most benefit.

How to Patent a Food Product

The process for getting a patent on a food product is like patenting other inventions. It starts by inventing something new and ends with a granted patent preventing others from copying your invention.

Step 1: Turn Your Idea into an Invention

Every invention begins as an idea. For this idea to become eligible for a patent it must be transformed into an invention. The idea must be tied to something in the real world.

Transform your idea into an invention by building a prototype. Test out the prototype and make improvements to it. Consider all the different variations of your invention that you can think of.

Step 2: Contact a Patent Attorney

An inventor should contact a patent attorney once they have an invention, they are considering patenting. Although not required to file a patent, it is highly advisable to use the service of a patent attorney.

A patent attorney can assist an inventor on every step of the patenting process, and draft strong claims that ensure the invention is adequately protected. A patent attorney will help the inventor to decide whether to file for a utility patent, a design patent, a plant patent or multiple.

Step 3: Perform Market Research

A patent provides an economic incentive for people to invent new things. There isn’t much point in applying for a patent if you can’t profit off the invention. Performing market research helps the inventor make an informed decision whether paying the cost of a patent application is worth it.

Before starting the patenting process, make sure you understand the market potential of your invention and have a plan for how to make money from having a patent.

Step 4: Conduct a Patentability Search

The USPTO requires an invention to be novel so a patent cannot claim anything that already exists. Before beginning the application process, an inventor must explore what has already been done to make sure they can patent their invention.

A patentability search, also known as a prior art search, attempts to discover as many relevant sources as possible that might be used by the USPTO to prevent a patent being granted.

An inventor should always do their own preliminary research to understand the technological field. A good place for an inventor to start conducting their own research is Google patents, Google scholar, and the USPTO patent database. Try using different combinations of Boolean and keyword searches. Google patents has a function that shows related patents at the bottom of the page. Explore as much as you can. The USPTO has a step-by-step tutorial of how to conduct a preliminary patent search.

Although inventors should conduct their own research, it is recommended to use a professional researcher. A patentability search can be conducted by a patent attorney, or a patent research company. Professional research services have subscriptions to databases, giving them access to more sources than an independent inventor would have.

If an inventor is not trained in performing research, they may miss important prior art references. Using a professional researcher provides the highest level of confidence that your invention is unique, and worth taking to the next step in the patent process. A professional research company may charge anywhere from $100-$1,000+ for a patentability search depending on the complexity of the invention.

Step 5: Determine Inventorship and Ownership

An inventor is entitled to ownership of a patent for their invention. Who the inventor is might not always be clear.

A person is considered an inventor if they contributed to the conception of the invention. If multiple people contribute to the conception, they are all considered inventors. If a person is a named inventor on a patent, they have rights to the entirety of the patent.

If there are two or more inventors, each can separately, and without permission of the other, use and license the use of the patent. This can be an issue because co-inventors can become direct competitors of each other. To prevent this issue from arising, co-inventors may sign a contract before filing the patent application. They may agree to not compete, or they may form a company that they all own and assign the patent rights to the company.

Most companies include intellectual property clauses in their employment contracts assigning all employees ideas and inventions to the company if made “in the scope of employment.” If you invent something during your job, for your job, and file a patent for it, you may be considered the inventor, but the company owns the rights to the patent.

If you are employed, it is very important to read and understand your employment contract. Consulting a patent attorney is highly recommended to interpret the meaning of intellectual property clauses in employment contracts.

Before proceeding with a patent application discuss with your patent attorney who conceived what aspects of the invention. Discuss with all inventors how credit for the invention should be allocated.

Step 6: Prepare the Patent Application

Most inventors use the services of a registered patent attorney to prepare and file the patent application. Although an inventor may file and obtain their own patent, there is no guarantee that the patent would sufficiently protect the invention. Each patent application has several forms that must be filled out and submitted. The patent specification can be drafted from scratch or by using templates found online.

If you are an individual inventor, you should also fill out the certification of micro entity status form to reduce the amount of fees due. All applications must be submitted to the USPTO in English.

Step 7: Submit the Patent Application

The typical method of filing a patent application is using the USPTO’s Electronic Filing System (EFS-Web). Navigate to the EFS-Web portal and create a USPTO account. The required documents are uploaded to EFS-Web in PDF format and submitted. Fees are also paid through the EFS-Web portal.

Applications can also be filed by mail or delivered in person to the USPTOs main office in Alexandria, VA. Applications should be mailed to “Commissioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450.” Applications filed by mail or in person are charged an additional fee.

Step 8: Wait for Approval (Notice of Allowance)

It takes some time for the USPTO to start examining an application due to the large number of applications received. The time it takes for the USPTO to begin examining a patent varies by the technological field of the invention. The historical time to receive a first office action is around 18 months. Very few applications are approved on the first office action.

The applicant then fixes the issues the USPTO indicates in the first office action and resubmits for a second examination. If the applicant correctly fixes all the issues, then a notice of allowance is issued. The typical amount of time for a patent application to make it to an allowance or final rejection is around 24 months.

While the application is pending you may view the status using the USPTOs Patent Application Information Retrieval Tool (PAIR). Login using your USPTO account. PAIR shows where your application is in the process and any action items that you need to address. Correcting issues or uploading more documents is done in the EFS-Web portal.

Step 9: Petitions and Appeals

If your application is rejected a second time you may appeal the decision. Appeals at the USPTO are heard by the Patent and Trademark Appeals Board (PTAB). PTAB judges differ from normal judges because they have significant experience and expertise in patent law.

The judges will review the examiner’s decision, hear arguments from both the applicant and the USPTO, and make a final decision on whether the patent will be granted or not. To appeal a final rejection file a notice of appeal in the EFS-Web portal and pay the appropriate fees.

Like a normal court of law, an individual can represent themselves in an appeal hearing, but using the services of a patent attorney is highly recommended.

Step 10: Use Your Patent and Enforce Your rights

Just because you have a patent doesn’t mean that people won’t infringe your patent. It is the responsibility of the patent owner to enforce the rights granted by the patent.

If you think someone is infringing your patent, you should contact them in writing and explain why you think they are infringing your patent and ask them to stop. If they do not stop, you can initiate a lawsuit in a federal court and attempt to stop them from infringing your patent and for damages in lost profits. In court, your patent is a valid legal document that defines your invention and will be used to prove infringement.