Conditions for Issue of Patents
A patent issued by the United States Patent and Trademark Office (USPTO) provides proprietary rights of an invention. Such a proprietary right protects the inventor by excluding everyone else from making, using, buying, or selling the invention in the United States.
The US Patent and Trademark Office (USPTO) issues patents for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The two conditions required for issuing patents are novelty and non-obviousness.
Patent applications face rejection if the invention is already in use or known to others, or if it’s similar to an already existing invention, with the differences that are obvious. The USPTO also rejects patent applications that concern natural laws, physical phenomena, and abstract ideas.
Another ground for the USPTO rejecting a patent is if the invention has appeared in a printed publication anywhere in the world regardless of whether the inventor himself made one such publication. The inventor needs to apply for a patent within one year of publishing or selling the invention to avoid rejection under this clause.
Do Recipes Qualify?
Ordinary, recipes do not quality for patents, as everyone is free to prepare and consume the food they like. To qualify for a patent, a recipe has to pass the test of uniqueness and non-obviousness. The problem arises owing to the millions of recipes and cooking methods around the world, making the task of the inventor proving uniqueness and non-obviousness of the recipe difficult. The task, however, is by no means impossible, and the USPTO patents many thousands of recipes.
Recipes that address new preparation and or cooking methods rather than providing new combination of ingredients, stand a better chance of receiving a patent. The patent office rejects recipes that are obvious, or already existing within the common intellectual domain of the people.
The first step on how to patent a recipe is searching whether a similar recipe exists. Ways to do so include:
- Searching cookbooks published over the past 20 years. Patents expire in 20 years unless renewed.
- Performing an Internet search for the recipe, using the key ingredients or cooking method description as the keywords.
- Searching for similar or related recipes in the USPTO database.
The next step is making the actual application. Select the type of patent required. Most recipes require the basic utility patent. Those wanting to market the recipe commercially, in a box or packaging, need to apply for a design patent also.
File the patent application at the U.S. Patents and Trademark Office (USPTO). You can even file online at the USPTO. The USPTO rejects applications that contain a mere idea or suggestion, and considers only those applications that include a comprehensive description of the invention. Write down a comprehensive description of the recipe, including the ingredients, preparation process, and time requirements. Fill in the required application forms and apply.
Taking the services of a patent attorney is a god idea during this stage, for incorrect applications may invalidate the patent.
The U.S. Patent and Trademark Office takes a minimum of one-and-a-half years to respond to patent applications.
Inventors looking to market the recipe commercially may apply for a provisional patent application. Such provisional patent is a temporary patent with one-year validity, and allows affixing the term “Patent Pending” to the invention during the period. This patent requires replacement with a conventional patent application within the year. The advantage of a provisional patent is the relative ease and low-costs for obtaining such a patent, which in turn allows the inventor more time to make a stronger patent application, considering the commercial response to the product during the year. Hence, a later filing date also means a later expiry date, adding to returns on investment.
Applying for a patent is expensive. The initial application costs ranges anywhere between $7,000 and $10,000. Hiring a patent consultant costs extra. Having received a patent, maintenance charges apply, and over the lifetime of a product, the total costs can be as much as $25,000 to $30,000.
Patents issued by the U.S. Patent and Trademark Office remain valid only in the United States. Inventors looking to patent a recipe worldwide need to apply for an international patent from their home country based on the Patent Cooperation Treaty, signed by 118 countries worldwide.
Lemelson-MIT Program. Inventor’s Handbook. “How Do I Apply for a Patent.” http://web.mit.edu/invent/h-chapters/h-six.html. Retrieved March 30, 2011.
U.S. State Patents and Trademark Office. http://patft.uspto.gov/. Accessed March 30, 2011.
Stanford Univetrsity. Office of Technology Licensing. http://otl.stanford.edu/inventors/resources/inventors_patapp.html. Retrieved March 30, 2011.