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.
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.
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.
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.
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.
Most food inventors file a non-provisional patent application for their ideas. However, if you need more time to test your idea or you haven’t perfected the process yet, you can file a provisional patent application first. The benefit of filing a provisional application is that the final, non-provisional application will have the same filing date as the provisional application, which means your food idea is protected for up to one year prior to filing the non-provisional application.
The most significant and time-consuming aspect of your patent application is the specification. This document must provide a summary of your food idea or product, detailed instructions on how to prepare the product, the ingredients, and most importantly, the specification must convince the USPTO that your food idea is sufficiently novel and non-obvious to warrant patent protection.