There is often a misconception that the only intellectual property protection available for food-related technologies is a trade secret. While a trade secret is an IP right commonly used as a means to protect food-related technologies, a utility patent is also an option.
A utility patent directed to edible products and food-related processes and compositions is commonly known as a food patent. The federal statutes related to patent law encourage innovation in all fields, including the food industry, and the United States Patent and Trademark Office (USPTO) regularly grants food-related patents. Inventors of novel and marketable food products and food processes should consider applying for a patent.
In some situations, patent protection is a good fit for one aspect of a food-related technology, while trade secret is a better fit for another. To effectively protect a technology through a trade secret, certain measures have to be taken to maintain a technology secret. However, based on past experience, I would estimate that approximately 60 percent to 70 percent of technologies companies consider to be trade secrets are not enforceable as trade secrets because the appropriate measures have not been taken to maintain technologies as secrets.
Patent Types for Food-Related Items
Patent Class 426, Food or Edible Material, allows for patenting food-related technology, including compositions. The language of this patent class covers foods and edible materials including processes, compositions, products and products made by a specific process. An inventor can create a new and non-obvious composition that alters a known composition innovatively or create a new one. However, the composition must still meet the same criteria for patent eligibility as any other technology. The technology must be novel, non-obvious, useful and fully disclosed/enabled.
Therefore, food patent applications should at least have claims directed to composition, process and product categories of claims and may include product-by-process claims. Class 426 covers “products and compositions in any physical form which are intended to be consumed by human beings or lower animals in whole or part via the oral cavity.” This description includes recipes, certain kinds of food packaging, food processing and any other “products or compositions" that otherwise meet the requirements of a utility patent.
Design patents, which protect the ornamental appearance of an item, are yet another option for protecting a novel food item. A Design Patent can be used to protect the ornamental appearance of a product, concurrent with a utility patent that protects the product’s functionality. An example of a subject matter that a design patent can protect is a shape for a children’s breakfast cereal. Design patents are also used to protect ornamentally unique food packaging.
One benefit of seeking patent protection is that advertising a food item as patented can boost your branding and marketing efforts. Patents can also carve out a market share that your competitors cannot enter without trepidation of a potential patent infringement lawsuit. For example, Redwood City, California-based Impossible Foods sued Motif, a Boston-based spinoff of biotech company Ginkgo Bioworks, in March 2023. Impossible Foods said Motif’s products using its Hemami technology infringe patents related to imitation meat that uses the protein molecule heme to replicate meat's taste, smell, texture and appearance. Impossible Foods said Motif's imitation burgers, sausage, pork and other products infringe seven of its patents.
When Should You File?
Filing provisional applications in the U.S. as early in the development of the product as possible is a good strategy even if you are still tweaking the composition or the process so long as you can show that you own the invention and effectively reduce it to practice. Provisional application rights can be perfected before the 12-month deadline by filing a formal non-provisional application claiming the benefit of the provisional application.
The Applicant must remember that a provisional application filing in the U.S. is an actual application filing. Therefore, the one-year deadline for filing a foreign application claiming priority to and the benefit of the provisional application runs concurrently.
Elements a Food Patent May Protect
The USPTO has awarded many patents for various types of food-related technologies. They include novel compositions, processes and products. Many of them involve improvements to processes and products.
For example, there are patents covering food items including additives that increase shelf life. Other innovations address food manufacturing processes. Some other examples of food patents include those related to:
- Novel physical appearance
- Novel combinations of elements: compositions
- Improving flavor: This is hard to prove. Taste and flavor can be detrimental.
- Improving textures: Some batters and doughs cook differently depending on the ingredients. This area includes any process that exchanges ingredients to make the food tastier or easier to prepare.
- Increasing shelf life: Extending the shelf life of a product to keep it fresh longer.
- Making foods healthier: Reducing the calorie total or making something vegan falls into this category.
- Making foods easier to cook: Making something possible to cook in a microwave, for example, or any other innovation.
When seeking patent protection for food technology, as with every other patent technology, you must identify what is novel and non-obvious about your food technology. Potential applicants should look for changes in the composition of a food item, such as substitute ingredients that may not typically be used or changes in the manufacturing processes that improve shelf life, taste, texture, appearance, nutritional value or other improvements when determining for which food items to seek intellectual property protection, whether patent or trade secret. The applicant should also explore and disclose alternative versions and alternative components of the composition or process to increase the breadth of the application.
Looking for components of a composition or steps in a process that provide an unexpected and desirable result, specifically for the previously identified areas of improvement, is also important for applicants to know. For example, components of a composition or steps in a process may reduce unhealthy carbohydrates and/or make a frozen food item taste fresh once cooked, as if it had never been frozen. A new composition may provide a gluten-free or vegan alternative or a more cost-effective and/or quicker way to do a traditional cooking technique, such as smoking a food item or fermentation of a beverage item.
Although more difficult to attain, novel meat cuts or food item structures can also be patentable. Genetic or biological variances that differ from what occurs naturally and have certain efficacies for certain applications may also be patentable.
Novelty and Obviousness
The threshold of originality and creativity for food compositions and recipes to be patentable is set particularly high. Despite being decades old, the USPTO still relies on the standard set by the former patent appeals court, the Court of Customs and Patent in “Application of Levin”, 178 F.2d 945 (Cust. & Pat. App. 1949). Focusing on what makes a food composition inventive, the CCPA framed the patentability inquiry with a chemistry term—coaction. Even if a recipe or food composition is entirely “new,” the addition or subtraction of ingredients in a recipe—while perhaps leading to novel texture or food flavor results—is not patentable unless the applicant can establish “a coaction or cooperative relationship between the selected ingredients which produce a new, unexpected and useful function.” Not surprisingly, foods that combine traditional ingredients and use standard cooking or preparation techniques are unlikely to meet these requirements.
The Levin court provided some guidance: “Invention may reside in a composition of matter formed by the intermixture of two or more ingredients which results in a product possessing characteristics of utility that are new, additional and materially different from the property or properties which the several ingredients individually do not possess in common.” Thus, a food composition may be patentable if the whole is greater than the sum of its parts, i.e., if the characteristics of the composition are “materially different” and not cumulative of the characteristics of the individual ingredients. For example, the combination may be patentable when a new combination of known ingredients provides a previously unknown synergistic effect.
Many patented technologies are tangentially related to food technologies. For example, patents directed to food packaging or even the atmospheric composition inside a food package to maintain certain atmospheric conditions to increase the shelf life of a food product. Another example is packaging designed for microwave and/or oven heating. Another example is biologics developed around strains of animals having desired characteristics or feed developed to assist in the healthy growth of an animal.
Successfully Navigating a Launch
Obtaining a utility patent can improve a food manufacturer’s chances of successfully launching a food item in the marketplace. As a practical matter, as with companies in other industries, a food company developing new products through engineering, research and development should invest an equivalent of at least 5 percent of their development cost to protect their innovations. Otherwise, one can certainly argue that a company is not leveraging its innovations to the fullest and is not getting the appropriate return on investment. So, if a company expends $5 million on developing technology, it makes sense to expend at least $250,000 protecting the investment. This doesn’t include the contribution the technology may have on revenue generation.
In the past five to ten years, the food and beverage industry has fielded many new innovations including meat and dairy product plant-based alternatives, meat product plant-based alternatives, plant-based protein alternatives or modified plant-based protein alternatives, CBD- and collagen-infused products and products containing various pre/pro/post-biotics. Many of these products have attained brand recognition. As food innovators continue to figure out how to better feed the world’s growing population, I am sure that food patents are here to stay.