How to Patent Food Ideas

By Jeff Franco J.D./M.A./M.B.A.

If you have some great food ideas and want the exclusive right to manufacture or sell them in the United States, obtaining a patent on each idea is a smart thing to do. To obtain patent protection, you must file an application with the United States Patent and Trademark Office, or USPTO. A separate patent application must be filed for each food product or recipe idea, and your application must reflect a tested process or product rather than just a vague idea.

Step 1

Search the USPTO online database of existing patents to make sure your food idea hasn’t been patented already. You can conduct a basic or advanced search using various keywords at the USPTO website (see Resources). A thorough search using all possible keywords is essential so you don’t waste time and money filing a patent application for a pre-existing food product or recipe.

Step 2

Evaluate your food idea and make sure it includes a unique recipe or cooking process. Your food idea must be “novel and non-obvious,” meaning it must either result from combining a unique set of ingredients or a unique way of preparing it. For example, making improvements to an apple pie recipe using common ingredients may not be sufficiently novel to warrant a patent.

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Step 3

Prepare the utility patent application documents. The USPTO requires that your complete application package include an application and fee transmittal form, application data sheet, a written specification that outlines all aspects of your food idea, drawings or images of your food product (if including them will strengthen your claims) and an oath or declaration that you are the original inventor. The latter is required only if you are filing a non-provisional patent application. For some of these documentary requirements, the USPTO provides standard forms on its website that you can fill in.

Step 4

File your patent application with the USPTO. The USPTO encourages filers to use its EFS-Web system. This system allows you to transmit all your documents online. It is also necessary to pay the applicable filing fee for your food patent application. If you elect to submit your application on paper rather than through EFS-Web, the filing fee is increased by $400.

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How to Patent a Food Product to Sell



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How to Write a Provisional Patent Application

Filing a formal patent application is expensive and time-consuming, and usually requires the services of an experienced patent attorney. You can, however, file a provisional patent application with much less effort and without retaining an attorney. Filing a provisional patent application will put your invention in "patent pending" status for 12 months, preventing anyone else from filing for patent protection for the same invention. This 12-month window will buy you time to file a formal application.

Principles of Patent Law

U.S. patent law is ultimately based on the federal constitution. In addition, many federal statutes and regulations govern patents. The purpose of patent law is to encourage people to create inventions by offering them a financial incentive to do so. You can sue for patent infringement in federal courts if someone attempts to profit from your patented idea without your permission.

Can You Get a Patent for an Idea?

You cannot patent an idea alone. If you develop the specifics of your idea, however, you might be able to patent it. A patent grants you a temporary legal monopoly on the right to use and profit from your invention. You may sell your patent outright or simply license the use of your invention. After your patent expires, anyone may use and profit from your invention.

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