Ask the County Law Librarian – Patenting Recipes
Q: I recently opened a bakery where I use recipes that have been in my family for generations. I’m worried about my competitors getting a hold of these recipes, and using them in their own bakeries. Can I patent my recipes, to keep them from being used elsewhere?
Recipes can be patented, as long as they meet the requirements that apply to any other type of invention. There are several basic requirements you will need to meet in order to patent your recipes.
First, your recipe must fall into one of the patentable subjects described by Federal law. To be patentable, your invention must be a "new and useful" process, machine, manufacture or composition of matter. The US Supreme Court has ruled several times that the only categories of things that cannot be patented are laws of nature, natural phenomena, and abstract ideas. Generally, recipes would fall into one of the patentable categories.
Federal patent law also requires that your invention be useful. As long as your invention is capable of achieving a useful result, it will meet this requirement. A delicious baked good is, in my opinion, a useful result.
The next two requirements are usually the biggest hurdle to obtaining a patent. Federal law requires that your invention be “novel” and “nonobvious.” “Novel” means that it has some significant physical or methodical differences from all prior inventions that are publicly available before the date of your invention or more than one year before your patent application. “Nonobvious” generally means that someone who is skilled in the particular field would consider the invention to be an unexpected or surprising development. It cannot be just the next logical step or change to an existing patent.
These two requirements may be a problem for you in patenting a recipe. To meet the “novel” requirement, you will need to prove that your recipe is significantly different than any other recipe that came before yours, and that was not publicly known more than one year before you apply for the patent. If your recipe has been in your family for generations, chances are it’s been publicly known for years. For your recipe to be “nonobvious” it will need to include something that would surprise skilled chefs. Simply adjusting ingredients and measurements will not likely be enough to make your recipe nonobvious.
Federal law also limits patents to the inventor or discoverer. This means you can only patent your own recipe. You probably cannot patent your grandmother’s recipe, since you did not write it yourself.
After reading all this, you may decide that a patent doesn’t suit your situation, and wonder how you can protect your recipes from other bakeries. Companies like Coca-Cola and KFC rely on trade secret law to keep their secret recipes out of the hands of competitors. A trade secret can be anything that gives you a competitive advantage, such as a special recipe or formula. To be considered a trade secret, you must take steps to prevent competitors and the public from accessing your recipe. Unlike a patent, there is no application process for a trade secret. Instead, you just take reasonable precautions to keep your information secret, like keeping your recipes locked away when not in use, or having your employees sign a nondisclosure agreement. The Uniform Trade Secrets Act prevents others from copying, using, or benefitting from your secret without your permission. If anyone steals or divulges your trade secret, you can ask the court to issue an injunction preventing further disclosure or use of your trade secret. This law does not protect against people “discovering” your secret, by reverse engineering your recipes, though. The Nolo Press website offers more information about trade secrets.
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