![]() Recipes can be novel, although it does frequently stretch the imagination to think that a particular recipe has never been contemplated, described, used or sold by anyone anywhere.īeyond the novelty question of exact identity you must consider that what makes your invention unique and how your invention can be distinguished over the totality of the prior art. This is why if you are willing to narrowly limit the definition of the claimed invention the possibility of obtaining a patent goes way up even if there is a lot of similar prior art. If you can articulate any difference in what you claim as your invention then you have overcome a 102 rejection. Section 102 and novelty is about exact identity, and this is not any kind of oversimplification. The word “identically” is chosen deliberately. If the recipe can be found in the prior art identically you cannot obtain a patent. Determining what is prior art unfortunately requires a Masters level understanding of patent law. If the invention exists in the prior art you cannot obtain a patent. Now I am going to provide an over simplification of Section 102, but conceptually what the Patent Examiner will seek to determine is whether the invention already exists. 102 and, generally speaking, asks whether the invention is new. Novelty is an issue that comes up under 35 U.S.C. ![]() This is where it starts to get more difficult for the individual who wants to patent a recipe, although this is not going to be the primary hurdle to patentability for a recipe. Recipes easily satisfy the utility requirement. The second type of deficiency arises in the rare instance where an assertion of utility for the invention made by an applicant is not credible (i.e., claiming a perpetual motion machine). These types of utility rejections are fairly rare though because utility does not need to be explicitly disclosed, it can be implicit or inherent in what is disclosed. The first is where how the invention will be used is not apparent from the description, which can occur when the patent application fails to identify any specific and substantial utility for the invention or fails to disclose enough information about the invention to make its usefulness apparent. 101 will typically arise in one of two Scenarios. If the invention works at all, no matter how crude, the invention is useful.ĭeficiencies under the “useful invention” requirement of 35 U.S.C. Something is not useful if it does not work it is wholly inoperative. So it is typically most helpful to seek understanding of what is NOT useful. Virtually everything is considered “useful” within the meaning of how the patent laws use the term. Both can be protected (i.e., patented) if the other patentability requirements are satisfied. Recipes are indeed patentable subject matter and protectable either by defining a “new and useful process” or as a “composition of matter.” For example, the resulting secret sauce is a composition of matter, while the steps to made the secret sauce are a process. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. The section of the statute that governs patent eligibility from a subject matter standpoint is 35 U.S.C. If the answer to all of these questions is yes then you have something that can be patented, provided of course you need to describe the invention in a patent application to satisfy the disclosure and description requirements of U.S. Is the invention patentable subject matter?. ![]() The trick will be identifying a uniqueness that is not something one would typically think to try.ĭetermining whether something is patentable requires analysis of several different patentability requirements: ![]() It is certainly possible to obtain a patent on a recipe or food item if there is a unique aspect, perhaps if there is something counter-intuitive or a problem (such as shelf life or freshness) is being addressed. Of course, the only way to know for sure is to understand how the Patent Office reaches its conclusions relating to what can and cannot be patented. In most cases the typical recipe for a “killer Margarita” or “the best barbeque sauce ever” will not be patentable because they won’t be unique enough, typically failing on the non-obviousness requirement. Typically the question presents specifically by a reader asking whether a recipe can be patented, or how one can patent a recipe. One of the most common questions I receive, dating back to the very beginning of, is whether recipes can be protected by any form of intellectual property. ![]()
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