How to Apply for a Patent for a Recipe

By Cindy DeRuyter, J.D.

How to Apply for a Patent for a Recipe

By Cindy DeRuyter, J.D.

Under certain circumstances, you can obtain patents for recipes. Patent law says inventors can patent "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" (35 U.S.C. 101.) However, most recipes fail to meet the additional required tests for patentability, namely that they are "novel" and "nonobvious" creations. These steps can help you determine if your recipe is patentable and, if it is, submit your patent application.

Chef putting pepper in a pot

1. Determine if your recipe is novel and nonobvious.

The biggest hurdle for most chefs and other recipe creators who want to patent their recipes is proving that their creations are novel and nonobvious. You cannot patent a recipe for a food item that is already available. To obtain a patent for a recipe, you also need to demonstrate the combination of ingredients or the method of combining them produced a result that would not otherwise be obvious. Most individual recipe creators find it difficult, if not impossible, to meet this burden.

Conduct a search of previous patent disclosures. A patent attorney or professional search firm can help you with this process, or you can access resources for patent searching available through the U.S. Patent and Trademark Office (USPTO) website. If someone else previously disclosed your recipe, you cannot patent it.

2. Fill out the application.

If you think your recipe qualifies for a patent, you can apply by mail or by using the Electronic Filing System (EFS) on the USPTO website. Because there is an additional fee for applications submitted by mail, most patent applicants choose to apply online. Register for the website by creating a user account if you do not already have one.

There are three types of patents: utility, design, and plant patents. Most patents, including those for recipes, fall under the utility patent category. You also need to determine whether you want to file a provisional patent or instead apply right away for a nonprovisional patent. You do not submit an oath or declaration with a provisional patent application, but the application allows you to use the phrase "patent pending." After filing a provisional application for a patent, you have 12 months to complete a nonprovisional application to patent your recipe.

The EFS walks applicants through the process. Be sure your application meets minimum requirements and that you include a Utility Patent Application Transmittal (Form PTO/AIA/15).

3. Pay application fees.

Check the current USPTO fee schedule to determine the filing fees for your recipe patent application.

The USPTO recommends applicants pay the application filing, search, and examination fee at the time of application using a credit card or by electronic funds transfer. You can pay the fee later, but the USPTO imposes additional surcharges.

If you are ready to protect your recipe or other invention, you can work with an online service provider to apply for a patent or obtain other intellectual property protection. Alternatively, you can work with a patent attorney who can answer your questions and walk you through the process from start to finish.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.