Cooking up a patent

Did you know that food recipes are patentable?

One of the biggest misconceptions many people have is that food recipes can’t be patented.

Typically, people believe that recipes are somehow uniquely tied into domestic cooking, in which ingredients are thrown together in known ways and that there is nothing inventive about this.

In many cases this may be true, and the typical recipe for a new tomato ketchup or Baked Alaska won’t be patentable, if the only difference to the hundreds of other known recipes for tomato ketchup and Baked Alaska is in the taste.

Unfortunately, this view tends to prevail in relation to commercial food production, where most industrial food production companies also fail to protect their developments due to the same mind-set.

However, it is certainly possible to obtain a patent on a recipe or food item if there are differences which provide more than just a better taste. For example, if your recipe includes a new ingredient, not found in any previous recipes for the same type of product, but which reduces bitterness, improves mouth moistening or has some other “technical” effect, there is a distinct possibility that the recipe is an invention which could be patentable.

The trick is in identifying a uniqueness in your new recipe that is not something that would obviously come about from your change to an existing recipe.

Criteria for a patentable idea

In order for a recipe to be patentable, it has to fulfil two main criteria:

  1. It cannot be identical to any previously known recipe; and
  2. It cannot be an obvious modification of a previously known recipe, or possibly a combination of two previously known recipes.

The first criteria, novelty, is generally easily determined as your recipe will either be unique or it will have been described before in a previous publication.

The second criteria, known as “inventive step”, is a little harder to determine, and is generally more subjective. For example, even if your recipe is new, if you have simply replaced one ingredient for another and the new ingredient has known properties, then if your new recipe only differs by expressing that known property, it could be considered obvious to try and the resulting recipe could be considered to lack inventive step.

On the other hand, if your new recipe does involve one or more new technical effects, and there are at least arguments that these effects would not have been obviously achieved by the addition of, for example, new ingredients, new concentrations of ingredients or processing steps, then your recipe may be patentable.

Here are a couple of examples of patents granted for what are effectively ‘recipes’ to give you an idea of what you might be able to protect.

Example of patented ‘recipes’

Mouth-moistening candy

Commonly, candy includes saccharides in the form of sugars or polyols such as sorbitol, xylitol or maltitol to provide sweetness. None of these saccharides help to alleviate the problem of xerostomia, or “dry mouth” which some people suffer from. Candy can be manufactured to alleviate dry mouth by the inclusion of various acids such a citric acid, but these acids will of course contribute to tooth decay (along with sugars present in the candy). On the other hand, a patent was granted to a candy in which the majority of the usual saccharide used in the candy was replaced with galactose, which still provided a sweet taste, but also surprisingly stimulated salivation, thereby alleviating dry mouth. In addition, galactose reduces the likelihood of increased dental decay, compared to utilising acids as a mouth moistening agent. You can see that this particular recipe for candy is both new, and includes an inventive step as it was not obvious to switch sugars or polyols for a majority of galactose, and for the benefits of the galactose to be so pronounced.

Non-gasified coffee foaming creamer

Known particulate based dry mix foaming creamers for coffee, which are used in instant hot cappuccino compositions, generally include a gasfied foaming ingredient, and tend to include ingredients which cause the formation of floating white aggregates on the surface of a beverage prepared from the creamer. A patent was granted to a unique recipe for a particulate dry mix foaming creamer in which the foaming agent was a combination of gluconolactone and a carbonate or bicarbonate. It was surprisingly found that gluconolactone would react with the carbonate or bicarbonate to produce a gas which created a dense and creamy foam, but did not result in floating light aggregates. The taste of the creamer was also comparable to known creamers. You can see that the incorporation of a particular combination of ingredients created a technical improvement in the form of removal of unsightly white aggregates, whilst enabling the creamer to be manufactured as a dry particulate mix for ease of packaging and delivery to the consumer.

The above examples show that it is possible to obtain patents for recipes or food items which are not necessarily “high-tech” or particularly complicated, and also show that recipes in most food and beverage fields can result in patentable ideas.

You can probably think of many other “technical effects” which would lead your new recipes to have an inventive step; for example bitterness masking, zero calories, heat resistance, antioxidative properties, longer shelf life, increased retention of a coating layer etc.

Why should you file patent applications for your recipes?

Your company has been successful so far without the need for patents covering your recipes and food or beverage products, so why should you spend time, money and effort on obtaining them now?

There are a number of possible answers, for example:

  • Prevent your competitors from bringing out the same or similar products within a short timeframe of your new product launches.
  • Marketing and advertising kudos – once you have a patent application filed for your product, your advertising can include this fact, and once you have a granted patent, your product could be advertised as “patented”.
  • A bargaining chip with your suppliers – if you have a pending patent application for a particular product or recipe, or a granted patent, you may be able to get preferential rates with suppliers of your ingredients if you are the only company able to utilise those ingredients in a particular product sector.
  • A bargaining chip with your competitors – if you and your competitor have patents or patent applications covering your products, and any conflict arises, you may be able to use your intellectual property as a bargaining chip or leverage to obtain a more favourable outcome than otherwise.
  • Tax relief – the UK government has set up the Patent Box tax regime, which allows companies to claim tax relief on products protected by a UK or European patent, resulting in an effective tax rate of only 10% on profits made in relation to products covered by patents. This is not something to be ignored, and it can also be used in conjunction with existing R&D tax credits.

Hopefully this overview should encourage you to at least think about whether or not your recipes could or should be protected by patents, and don’t forget that other aspects of your food and beverage manufacturing business may also be protectable via patents, such as product formats, new packaging, manufacturing processes and apparatus.

For more information or to discuss your IP strategy with us, please get in touch to speak to one of our attorneys.

Wilson Gunn