How to Patent a Drink

Rich Goldstein

Founder & Principal Patent Attorney
Grocery shelves filled with various bottles and cans of drink beverages

For beverage entrepreneurs and inventors, securing a patent for your innovative drink creation can provide tremendous benefits. However, getting that patent presents challenging obstacles within patent law. We’ll walk you through how to patent a drink and safeguard your idea effectively.

How to Patent a Drink

If an inventor has an innovative new idea for a drink, they’ll want to protect it and stop others in the beverage industry from manufacturing or selling it themselves. To achieve this, a utility patent is required.

Utility patents are granted by the United States Patent and Trademark Office (USPTO). These are in place to protect non-obvious and new:

  • Processes: Methods or sequences of steps for producing a certain result or effect
  • Machines: Inventions that involve physical apparatuses or devices with specific structures, components, and functions
  • Compositions of matter: New and unique chemical compositions or combinations of substances

For a beverage to be patented, it must already be distinct from existing drink patents. In other words, it must be completely unique and not in any way similar to another beverage. A patent application must be filed, during which the drink must be described in detail. This is where it often gets complicated, and a patent attorney can help.  

To achieve a utility patent for a drink, an inventor must:

Can a Drink Formula or Recipe Be Patented?

Before filing a patent application, you need to determine whether your drink is patentable subject matter. All drinks contain certain ingredients that make them unique from others. A beverage’s recipe, however, can pertain to the composition of matter or manufacture, while the method of ingredient combination falls under the process category. Therefore, this renders the formula eligible for patent consideration.

A utility patent application can be filed at a patent office, where patent examiners will review it. However, the beverage must meet certain requirements:

  • The drink must qualify as a patentable subject matter
  • The drink must be non-obvious
  • The drink’s formula must be new
  • The drink must be useful

Establishing whether a drink’s formula is non-obvious or new can be challenging. Nonetheless, if you can prove that an ordinary person with expertise in the beverage industry has not found the recipe obvious, you stand a good chance of patent protection.

How to Prepare and File a Patent Application for a Drink

To find out whether your drink and/or its formula has already been patented, search the USPTO patent database. If similar results show up, you must explain why your recipe differs. No similar results? That’s good news for your patent application. 

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It’s worth noting that if your drink is considered prior art, it can not be patented. This means it has previously been disclosed publicly. Working with a qualified patent attorney or expert is highly advised to ensure your search is done thoroughly and correctly. Once you have performed the research, preparation of the patent application can begin. 

Patent Application Preparation 

Here are the steps required to prepare a utility patent application for a drink:

  1. Request a digital certificate and customer number from the USPTO’s Electronic Business Center.
  2. Once you have obtained the above, download and fill out a Declaration for Utility Patent Application. Again, the aid of a patent attorney can help you with this step. 
  3. Next, the drink formula/recipe needs to be described comprehensively. This is where the beverage and the process in which it is made must be explained in detail carefully. This can include the entire recipe, the ingredients used, and the process of making the drink (step-by-step).

Patent Attorney

To secure a patent for your beverage innovation, you should engage a patent attorney adept in food and beverage patents. Research attorneys with relevant experience, review client testimonials, and assess their success rates. Schedule consultations to discuss your drink idea, evaluate their expertise, and make an informed selection.

Bear in mind that you will need to pay patent attorney fees on top of patent application fees. Patent attorney costs can vary widely based on factors like location, complexity of the invention, the attorney’s experience, and the services required. 

Filing a Drink Patent Application 

If your patent application has been fully prepared (we suggest checking everything has been covered), it can be submitted via the USPTO website. On the site, you must enter information on the eFILER registration

For new applicants, a screen will appear displaying “Nonprovisional Application.” Select this and proceed by clicking on “Utility.” From here, you can submit your completed patent application, along with any drawings or diagrams you think can help the examiner understand the formula better. 

Cost

Patent fees are required at this point. The USPTO website states, 

“You can electronically submit the required filing, search, and examination fees using a credit card or electronic funds transfer.”

The fee you pay covers the patent search, as well as the patent examination. Fees are subject to change (currently $630), so you should check the patent fee schedule for updates on current costs. 

Woman hovering over her boss who is sitting and signing a document in his table

If a patent is approved, a fee in the region of $1,180 is required for the patent to be issued. In addition, another fee is needed to publish the patent. Further fees may be necessary, depending on the claims made in the application. 

Novelty for Drink Patents

For a drink to be considered patentable, its formula must be novel. As discussed above, the formula must have never existed beforehand. Here are the main points to consider in terms of whether a drink is novel:

  • Novelty requirement: The beverage formula must be entirely new, never existing before
  • Formula complexity: Figuring out novelty can be complex. Determine if the drink requires all new ingredients, or just a new combination of existing ones
  • New combination needed: The combination (formula/recipe) must be innovative. Using existing ingredients differently to create something entirely fresh is essential. Merely enhancing existing drinks (i.ie., adding more carbonation) usually doesn’t qualify for patent protection
  • Utility patent eligibility: If your formula is genuinely new, unpatented, and unpublished, it might qualify for a utility patent

Inventiveness (Non-obviousness) For Drink Patents 

The inventiveness, often referred to as “non-obviousness,” is paramount when seeking a drink innovation patent. The invention can not be an obvious extension of existing knowledge or methods. Here’s why inventiveness matters:

Elevate Innovation

Inventiveness ensures that the patented drink offers a significant advancement beyond what’s already known. It encourages inventors to create groundbreaking beverages that push the boundaries in their field.

Avoids Obvious Solutions 

Patent protection isn’t granted to trivial or obvious combinations. An inventive drink solution must involve unexpected combinations, or methods that a person skilled in the field wouldn’t easily arrive at.

Strengthens Protection

A truly inventive drink is more likely to withstand legal challenges or attempts to invalidate its patent. By demonstrating non-obviousness, an inventor can provide stronger legal protection against competitors trying to replicate their creation.

Develops Investment Opportunities

Patented inventions that are non-obvious often attract more attention from investors and collaborators. A non-obvious drink has the potential for market disruption and higher commercial value. 

Just look at Ready-To-Drinks (RTDs) sales – in 2022 RTDs alcohol market size was valued at a colossal $36.52 billion, and is expected to reach $97.2 billion by 2031.

Grocery shelves filled with various bottles and cans of drink beverages

Functionality for Drink Patents

For a drink to be eligible for patenting, it must be regarded as useful or functional. Let’s break it down:

  • Usefulness for patent protection: Most beverage formulas need to fulfill the usefulness requirement for utility patent protection
  • Demonstrating usefulness: To establish usefulness, the beverage formula must offer a discernible advantage. For instance, they should provide energy, quench thirst, or offer specific benefits

When preparing the utility patent application, you must outline the formula’s usefulness and potential applications. It’s important to note, however, that patent offices rarely reject applications due to lack of usefulness if other requirements are met.

Why Patent a Drink?

To successfully protect an idea, a patent is a necessity. The same applies to drinks, as a patent safeguards its unique formula, providing exclusive rights and market control against imitation. In time, this can offer the potential for innovation and profit.

The main benefits of patenting a drink are as follows:

  • Provides exclusive rights: Patenting a drink formula grants exclusive rights for a certain period. Therefore, you can prevent others from manufacturing, using, selling, or offering to sell the patented beverage
  • 20-year protection period: Utility patents provide protection for 20 years from the application filing date. During this timeframe, competitors cannot lawfully replicate the drink formula without permission
  • Unrivalled market advantage: As the sole producer and seller, you gain a competitive edge in the market. Competitors can’t imitate the beverage, giving the inventor complete control over its distribution

Related Questions

Can You Copyright the Name of a Drink?

No, you can not copyright the name of a drink as it typically falls under trademark protection, and copyright doesn’t extend to beverage names. Instead, copyright covers creative works like art, music, and writing. If you wish to trademark a beverage, you must file a trademark application with the USPTO.

Can You Patent an Alcohol?

You can potentially patent an alcohol. However, patents tend only to cover certain aspects related to alcohol products. The patent would likely focus on a specific innovation, process, or method related to the production, composition, or use of the alcohol, rather than the alcohol itself.

Conclusion 

As long as a drink is considered novel, distinct from any other beverage, and meets all USPTO patent requirements, it is eligible for parenting. This doesn’t mean it will achieve a patent, though. The patent process can be challenging and confusing, though a patent attorney can help achieve that all-important patent protection. 

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