How to Patent a Food Product

Rich Goldstein

Founder & Principal Patent Attorney

If you’re a food creator with some tasty ideas, you’ll want to protect them. When protecting any idea, protecting your delicious inventions while dealing with confusing laws is challenging.

I’ve been through this and learned how to patent my tasty creations. Let’s work together to make this process easier! 

In today’s post, I will show you how to patent a food product and help you achieve success in getting your food product patented.

How to Patent a Food Product

I should start by answering the fundamental question – can you patent a food idea? In short, yes, you can patent food products. Nevertheless, most food products in the grocery store are unlikely to be covered by a utility patent, “a patent that covers the creation of a new or improved—and useful—product, process, or machine.”

That’s not to say food products are not patented, however. Take Hormel Foods, for instance, which have a total of 190 patents worldwide, 104 of which have been granted. Whilst food patents are possible, the road to acquiring one is not straightforward.

Food Patent Protection Requirements 

Before applying for a food patent, you must ensure your product meets the requirements for a United States patent. According to Section 101 of the Patent Act (35 U.S.C. 101), a product is eligible for patenting if it is a “new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof.”

A list of ingredients or a food product can be considered a “composition of matter,” so it can be patented. However, it still needs to meet further specifications.

Subject Matter & Non-obvious (Novelty)

An invention must be considered novel (never been made or used before). This comes under 35 U.S.C. 102 and 35 U.S.C. 103. A patent cannot be obtained if anything exists in the prior art (published literature describing an invention’s component).

If a food recipe is not considered prior art, it tends to meet the novelty requirement of Section 102. Under Section 103, a food product can be unpatentable if considered “obvious.”

Usefulness 

To be patentable, a food-based item must be helpful. Fortunately, practically everything can be evaluated as applicable. Most food products easily meet this requirement as you can eat or drink food creations for nutritional support. 

The following areas give inventors the best chances of obtaining a patent:

  • Production
  • Processing
  • Food preservation techniques
  • Ingredients are functional
  • A unique packaging design 

Some examples include new beer flavors, such as Amoretti’s Cookies & Cream beer flavor and plant-based food substitutes for vegan diets.

Use a Patent Attorney

You must disclose your food product’s ingredients and the process to obtain patent protection successfully. Just about everything about your idea needs to be shared. However, a balance is needed:

  • You need to disclose enough information to achieve a patent.
  • You should not disclose too much information so that someone else can copy and alter it slightly.

To ensure you disclose the necessary information, I recommend working with a patent attorney who can guide you through the complicated process. 

Patent Food Products – Guide

There are specific steps to take when patenting a food idea, just like any invention. As I discussed above, the first step is to meet the requirements to apply for and acquire a patent (i.e., invent something new that has never been done before). 

You need to consider these steps when patenting a food product:

  1. Building a prototype
  2. Researching the current market
  3. Hiring a patent attorney
  4. Conduct a prior art search
  5. Identify the rightful owner
  6. Making a patent application and submitting it
  7. Notice of Allowance

1. Build a Prototype 

It’s generally very difficult and unlikely that you will patent a food idea alone. You should build a prototype first, so it is a tangible object. Once you have a physical prototype, test it repeatedly and think of any variations it may need. 

2. Research, Research, Research 

Pursuing a patent only becomes meaningful when the profit potential exists. Conducting thorough market analysis is vital in determining if the investment in a patent application holds value.

Before initiating the patent journey, ensure a comprehensive grasp of your invention’s market viability and strategize how to capitalize on the patent’s potential earnings.

3. Hire a Patent Attorney

Hiring a patent attorney for your food patent ensures that the intricate legal processes are expertly navigated, increasing the likelihood of a successful application. Their specialized knowledge not only safeguards your intellectual property. They also streamline complex procedures, saving you time and ensuring comprehensive protection.

You can consider hiring a patent agent if a patent attorney is out of your budget. Licensed by the USPTO, these professionals can help with the preparation of your application and the filing of it.

4. Conduct a Prior Art Search

Remember, the USPTO requires an invention to be completely novel to be eligible for a patent. To ensure your product is patentable, you must determine if your invention or something similar has already been created (e.g., a used the exact same ingredients). This can be accomplished through a patentability search or prior art search.

As an investor, you should conduct this research yourself. I recommend using various keyword searches, starting with:

There is a USPTO guide available for conducting your preliminary patent search to help you get started. Once you are satisfied with your preliminary search results, it is recommended that you hire a professional patent researcher who will have access to data and sources beyond your reach.

5. Identify the Rightful Owner

It’s not always as clear as day and night when deciding who the owner of an invention is. Sometimes, if multiple individuals have contributed to an idea, more than one person can be considered the inventor.

It is essential to identify the rightful owner, as this person or group will hold the rights to the eventual patent.

Here are some steps to find out who the owner is:

  1. Gather all records and documentation related to the invention, including research notes, sketches, prototypes, and communication records.
  2. Identify the individuals who have contributed substantially to the invention’s conception and development.
  3. Review any employment agreements, contracts, or company policies that relate to ownership of inventions created during employment. Some companies may claim ownership if the invention was developed within their scope.
  4. If the invention resulted from a collaborative effort, evaluate any agreements or contracts that define ownership and rights among the collaborators.
  5. Determine whether the invention is truly novel and not based on existing ideas (prior art). See above for more.
  6. Consider whether external parties, such as investors or sponsors, supported the invention financially. 
  7. Maintain clear and thorough records of the invention’s development process, including dates, progress reports, and all relevant communications.

6. The Patent Application 

Preferably done with the services of a patent attorney, the patent needs to be prepared sufficiently and then filed. With numerous files and forms required, a patent attorney can ensure all details are correct, giving you the best chance of achieving a patent. 

Most patents are submitted using the USPTO patent application forms online. Fees will be attached and documents (PDF) are required to upload via the EFS-Web Portal. It is also possible to apply via mail at an additional cost to “Commissioner for Patents P.O. Box 1450 Alexandria, VA 22313-1450.”

7. Notice of Allowance

The “Notice of Allowance” is a formal message from the U.S. Patent and Trademark Office (USPTO) to patent applicants. It signifies successful application review by a patent examiner and impending patent approval. Upon payment of specified fees to the Trademark Office, patent protection is granted, securing exclusive invention rights after necessary formalities.

You can keep track of your application on the EFS-Web portal. If any issues need to be amended or further documents are needed, you can also use the portal.

What if Your Food Patent Is Rejected?

Don’t worry if your food patent is rejected. As a Yale University Study found, over 90% of patents were rejected from 1996 to 2013 (a trend that has since continued). The good news is that you can appeal the decision.

The Patent and Trademark Appeals Board (PTAB) will assess all appeals and review each case. If you wish to appeal, you can file a notice via the EFS-Web. Yet again, a patent attorney is recommended for this process. 

Examples of Food Patents

Utility Patents

Utility patents are the most common type of United States patent for food products. Some examples of food utility patents include:

  • Lab-grown meat
  • Additives 
  • Hybrid foods (i.e., a “cronut,” a croissant-doughnut hybrid)

Utility patents can protect:

  • The actual food product
  • The process of producing the product 

Utility patents may also cover food products that are derived from plants, such as:

  • A new type of cabbage
  • A new variety of bananas

Design Patents

Products with a specific, unique design may apply for a design patent. Some examples of design patents include:

  • A food shape (i.e., new pasta shape)
  • A frosting design

Can You Patent a Food Recipe?

A food recipe can be patented, though it may not always be accepted. Alternatively, you can rely on trade secrets protection to keep your food recipe confidential if it provides a competitive advantage and is kept a secret from the public. A famous example of one of these trade secrets is Coca-Cola’s ingredients that help give the beverage its distinctive flavor. 

Additional Questions

How Much Does It Cost to Patent a Food Product?

How much it costs to patent a food product can vary based on various factors, such as filing fees, maintenance fees, patent searches, and attorney fees. In general, when applying for a patent at a patent office, it can cost from $900 (a DIY patent application), to between $5,000 and over $10,000 (with the aid of a patent attorney).

Can You Patent a Product Yourself?  

You can patent a product yourself, including food. However, it is essential to note that you can not patent an idea. To patent something, you must show how it works and be novel (see the requirements I discussed above). The patent application process is generally challenging. That is why a patent attorney is highly advised, as they understand the ins and outs of patent law.

Can You Patent a Food Name? 

You can not usually get a patent for a food name. This is because patents are typically granted for inventions under Patent Class 426, that are new, useful, and non-obvious. A food name does not meet these criteria.

Conclusion 

If you wish to patent a food product, it must meet specific criteria. It also needs a food recipe and instructions showing how to make the food.

If a food recipe is deemed non-obvious and novel (something that has never been done before), it is usually applicable for patenting. 

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