How to Patent Food Ideas

By Larissa Bodniowycz, J.D.

How to Patent Food Ideas

By Larissa Bodniowycz, J.D.

You've just had a stroke of genius and come up with a new food idea! Maybe it's a new salad dressing that does not wilt lettuce when stored overnight or a recipe for healthy toddler food that your two-year-old loves.

Chef proudly holding bowl of food in kitchen

You're quite pleased with your new creation and are thinking about turning it into a commercial enterprise. Naturally, you want to prevent others from using your idea. Under US law, you may be able to obtain a patent to protect your rights. A patent allows you to prevent others from using your food invention for a set number of years.

To patent a food idea, you must determine whether the idea is patentable, ensure that no one else has already patented it, and apply for a patent with the United States Patent and Trademark Office (USPTO).

1. Determine whether your food idea is patentable.

Not all ideas can be patented. Under U.S. patent law, an inventor can obtain a patent for "any new and useful process, machine, manufacture, or composition of matter" that is not obvious. Food ideas that meet these requirements are patentable.

Food ideas are new processes or compositions so they are the correct type of idea. By their nature, food ideas are also useful. New food processes are useful for improving food production and new food compositions are useful in improving food quality and variety. The new and not obvious requirements are not as easy to meet and bar some food ideas from being able to be patented.

If you are seeking a patent, you likely think your idea is a new one but you need to double-check. The best way to determine if your idea is new is to check to see if anyone already holds a patent for it. The best tool for searching for patents is the USPTO database. You should utilize a variety of keywords, some broad and others more narrow, when conducting your patent search to ensure that you uncover any patents that may already exist for your idea.

Even if your idea is a new one, you cannot obtain a patent if it is obvious. An obvious idea is one that someone in the food industry would view as a natural extension of an already existing idea. For example, substituting almonds for walnuts in a cookie recipe would not be patentable because it is an obvious improvement or change. On the other hand, a unique, specific process of preparing a food—such as a heating and cooling process with exact temperatures—that unexpectedly preserves the food's shelf life might be patentable.

2. File a patent application with the USPTO.

Once you determine that your food idea meets the requirements for a patent, the next step is to prepare and file a patent application with the USPTO. This must be done within 365 days of the first public disclosure of the food idea or you lose the ability to patent the idea. A public disclosure is broad for foods—just serving your food idea at a public event may be enough to start the 365-day countdown.

The most important part of your food idea patent application is the description of your idea. Your description should read more like a science book than a recipe you'd find in a cooking magazine. It should contain details regarding chemical processes and composition and be broken down to the molecular level. Of course, this is not an easy task for the average person without scientific training, so you may need to hire someone to assist with writing the description. In addition to the description of the idea, you also need to complete related USPTO forms and pay a filing fee.

3. Provide notice of your patent application and wait for a response from the USPTO.

Once you file your application, you wait for a response from the USPTO, which typically takes several months. While waiting, you can use the term "Patent Pending" on your food products to provide notice that you are seeking a patent and deter others from attempting to utilize your idea without your authorization.

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.