Patenting a recipe can be a confusing process, if you don't understand the patent criteria for food compositions. A great recipe is only patentable under very narrow circumstances. The recipe must be useful, novel and non-obvious. This three-prong test means that the greatest recipe in the world is not patentable unless it involves a food formulation or application that has not been used before and cannot be intuited by a cook merely tasting the final product. The recipe must also be new and cannot be an old family recipe or something that was cooked for the public in the past, because an inventor has a limited window of time to patent an invention before it becomes available to the public domain.
Conduct a patent search for prior food compositions that are close to the recipe you want to patent. You can obtain a patent on a unique invention only. When you submit a patent application to the U.S. Patent and Trademark Office, the agency conducts a thorough search. Ensure that your recipe will survive the search by doing a search of your own. Use the patent database that is available on the PTO website or the physical patent collections that are maintained by public libraries. Alternatively, hire a professional patent search firm or an attorney to conduct the search for you. If you submit a patent application without conducting a search, you risk losing your application fee if the application is denied.
Access the Patent Electronic Business Center at the PTO website. Click on the link for the Electronic Filing System. Select the "Launch EFS-Web Unregistered eFiler" link. Register with the system by selecting a user name and password. Obtain a customer number and a digital certificate from the system.
Fill out a utility patent application. Use Patent Class 426 - Food or Edible Material Intended to be Consumed. Decide whether you want the application to be provisional or non-provisional. A provisional application allows you to just provide basic information and take an additional 12 months to file a non-provisional application. This allows you to use the phase "patent pending" in conjunction with your recipe. Describe the recipe using broad terms that can include modifications to the formulation. Execute the application by placing a digital signature and acknowledging the oath of ownership.
Pay the filing fee. The PTO accepts credit cards, bank account withdrawals and PTO deposit accounts. This fee is nonrefundable, even if the application is ultimately denied. Check to see if you qualify as a "small entity" under the PTO guidelines. This status cuts the filing fees in half for qualified entities.
Click to submit the application for processing. Patent processing of a nonprovisional application can take up to two years. Use your system login and password to check the status of your application periodically. If the patent is ultimately issued, you will have to pay an issue fee and subsequent maintenance fees to keep the patent in effect for the full 20 years allowed by law.
Obtaining a patent is not necessarily the best way to protect your recipe. The patent process is complex, expensive, takes years to complete and only offers 20 years of exclusivity. Most major corporations that have a special recipe protect it as a trade secret. This is how the recipe for some of the most famous consumer products are protected. Trade secret protection can be renewed continually, as long as the recipe is still in use.
The patent process is a complex legal endeavor. It is advisable to hire a patent attorney or patent specialist to ensure the best result.
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