Food Patent: How to Protect Unique Foods, Drinks and Manufacturing Processes

How do you patent food?

If you love to eat as much as I do, you might think of food as something you would not normally patent. For the most part, foods generally do not appear on patents. Nonetheless, innovative foods can be patentable. Even the methods of making food can be patented. Like any other invention, a food concept must be novel and nonobvious in order to be patentable.

Need a food patent? Call patent and trademark attorney Vic Lin at (949) 223-9623 or email to explore how we can patent your food concept.

Is a combination of ingredients patentable?

You can think of a particular food as a combination of ingredients, formed and assembled in a certain way. In this respect, what you have is a composition of ingredients, and a composition might be patentable if it is novel and nonobvious.

The challenge in patenting a combination of ingredients would be to show that such a combination is not obvious. Suppose your concept includes a new ingredient that has never been done before. Would the patent examiner be able to find prior art patents that show either those new ingredients or a motivation to add those ingredients?

Is a method of making food patentable?

A method of manufacturing food may be patentable if the process introduces unique steps or removes steps. For example, a unique process that removes or replaces a conventional heating step might be patentable if it would be nonobvious to do so.

Equipment for making foods and beverages may also be protectable. Industrial equipment for making large quantities of foods can be protected along with assembly line processes that introduce unique steps.

For example, here is a utility patent that covers an oven and a method for heating a product in an oven.

US Patent No. 6,408,842

What are potential obstacles to patenting a food or drink?

One concern especially relevant to food patents would be timing. Has the food or drink already been shown or sold to the public? If so, has it been more than one year since the earliest public disclosure or sale?

If you are seriously contemplating a food patent, make sure to keep your concept confidential if possible. For any food products that have already been launched, a US patent application must be filed within the one-year grace period.

Another issue with patenting foods would be the scope of the claims. There is always a balancing act between narrowly drafted claims (to overcome prior art) and broadly worded claims (to cover competitors). Food claims might lean towards the narrower scope due to the higher probability of prior art and obviousness rejections.

Can you get a design patent on a food product?

What if the visual appearance of your food product is unique? You can file a design patent application to protect the ornamental appearance of your dish or product. Recognize, however, that a design patent would not protect the composition of the food or beverage, or how the product is made.

Need a food patent?

Contact patent and trademark attorney Vic Lin at (949) 223-9623 or email to see how we can help you protect your food innovation.

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