Patenting Foods Requires an Appetite for Non-Obviousness


Why Can’t Patents Give you the Munchies?


Jake Mace Profile Picture by: Jake Mace | November 13, 2017

Thanksgiving is quickly approaching and it’s time to for many of us to start preparing for a delicious feast for our loved ones. You may be surprised to find that many of the holiday’s iconic dishes were once patented inventions. Take a look at these, for example:

  • Turkey    3,804,965    “A Method for Roasting Meat”
  • Stuffing    3,870,803     “Instant Stuffing Mix”
  • Mashed Potatoes   3,275,458   “Dehydrated Mashed Potato and Process for Making Same”
  • Gravy   3,615,600    “Meat Flavor Composition containing Succinic Acid”
  • Biscuits    3,879,563   “Refrigerated Biscuit Dough”
  • Cranberry Sauce   3,023,108    “Processing for Preparing Cranberry Sauce”

These particular patents have long since expired, but patents continue to be granted for food products and preparation processes. It is increasingly difficult, however, for an inventive food to satisfy the requirements of filing a patent.

Luckily, any food is undeniably “a composition of matter” and consequently statutory subject matter, but in order to be patentable it must also be useful, novel, and non-obvious. No one is going to deny that food is useful, which is pretty easy to justify in and of itself, so the main hurdles are novelty and non-obviousness.

The inventive food must still be “novel.” This means it can’t have been published, known or used in the public, invented by another, or described in another patent, otherwise… no patent. So, don’t go offering free samples to the public until you’ve consulted with your patent attorney first.

The invention must also be “non-obvious.” This means it must be different enough from pre-existing inventions to the extent that “a person having ordinary skill in the area of technology related to your invention” would view it as non-obvious. Trivial changes like altering the ratio of ingredients are not going to be enough, especially from the perspective of a chef (the likely “person having ordinary skill”).

These criteria make it very difficult for a food to survive the patenting process. Nevertheless, patents continue to be granted for inventive foods, here are some examples that made it past the novel and non-obvious challenges:

  • Artificially Sweetened Food     7,867,544     “Sugar-Free Chocolate Crumb Confection”
  • Gluten-Free Food     8,685,482     “Gluten-Free Food Compositions”
  • Microwaveable Food     6,410,074     “Method for Making a Microwaveable Sponge Cake”
  • Food with Longer Shelf Lives     5,079,012     “Shelf Stable Cookie Product”

As these examples demonstrate, you probably won’t be able to patent your grandma’s secret recipe since the key to inventiveness with foods is typically a feature related to health or convenience. But, your grandma would probably wring your neck if tried to share that secret recipe anyway.

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