You've invented the next great drink and want to protect your rights to it. The best way to protect your invention is through a patent. But getting a patent, even in the best of circumstances, is challenging. Getting one for a drink is even more so, as the United States Patent and Trademark Office (USPTO) has stringent rules about what inventions are patentable. With some guidance and knowledge about what is needed, you can get through the patent process.
How to Patent Your Drink
Determine if your drink is patentable. According to the USPTO, "Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof." This means that your drink needs to be completely new and different. It can't be a new twist on an old drink. For example, you can't patent a new chocolate milk simply by adding a new ingredient.
Check to see that someone hasn't patented the drink already. Just because you haven't seen the drink on the market doesn't mean someone else didn't think of it first. Visit the USPTO online to do a patent search on your drink (see Resources below). Search by using keywords that describe what your invention does (as opposed to what it is). For example, if you have a sport drink, search one keyword related to that. Use the results of that search (patent and classification numbers) to search deeper for additional similar (or same) patents. It's tedious work, but it will save you grief in the future if it is discovered that the drink is already patented.
Decide whether or not you'll use a patent attorney or agent. While you can file a patent on your own, the challenging nature of patenting a drink as well as doing patent research makes hiring a professional well worth the money. If you still want to file on your own, consider hiring a patent attorney or agent to check your paperwork. One badly worded claim can result in not having the protection you want.
File your application. If you're using an attorney or patent agent, follow his directions for filing. If you're going to write and submit your application on your own, access the USPTO website to get the application and instructions. Or you can use patent application software to guide you in writing and filing your application. Your patent application should have:
- Application form.
- Fee (see USPTO for current fees).
- Application data sheet.
- Claims (These are the attributes of your drink that you want to be protected.)
- Description of the drink.
- Drawings, or in this case, a recipe.
- The wording of your application, particularly in the claims section, is vitally important. A weakly worded claim can allow others to create, without infringement on your patent, a nearly identical drink. This is why a patent attorney or patent agent can be well worth the investment in protecting your drink.
- You may find that getting a patent on the drink itself is too difficult. However, it could be worthy of trademark protection as a proprietary recipe, just like Coca Cola. Or perhaps the drink itself doesn't qualify for a patent, but the process of making it does, or the machine you invented to make it does.