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food formula patents

Posted by . updated on 10/26/2004
Last year I met someone at a professional convention representing a foods patent atty out of NYC. This year, I have been accused of ''making it up'' by a woman in a food business (who claims to be legal savy) who says that food formulas or recipies (even if absolutely unique and not found in the market) ''CANNOT be patented in any way''. I know food patents are not done often for obvious reasons, but what about protection of unique and fresh formulas and/or methods? Also, are there any food patent specialists in NJ and what is a baseline figure to patent a unique item (if it can be proven to be so?)
Answers (2)
Alan Albin
Your question is not clear. What, exactly, have you been accused of "making...up"? No lawyer will be able to advise you as to whether a particular invention you have in mind is or is not subject to patent protection without actually being retained to review the specific invention. So, you need to retain an intellectual property attorney who specializes in food products. You may benefit more from trade secret protection rather than patent protection with a food product. In order to patent an invention, its formulation must be publicly disclosed in patent office filings. If so, your competitors could "reverse engineer" your product more easily (think Coca-Cola vs. Pepsi). That being said, it is difficult to think of any food recipe which would be original enough, yet non-reverse-engineerable, which would benefit from patent protection. I.e. if your product is a new recipe for brownies, you would obviously be building on the work of others, perhaps with some different combination of ingredients. However, simply putting in a number of different ingredients does not seem original or non-obvious enough to warrant patent protection. Again, you might be better off with a trade-secret methodology for a recipe or similar food product formulation, i.e. like the "secret formula" for Coca-Cola. Or, grandma's "secret recipe" for brownies.
Walter ...
I agree with Alan, that unless you are developing not a process or receipe, but "creating" a new "food", there is probably nothing eligible for a patent. However, since this is a specialized field, I suggest contacting a qualified patent attorney (I could recommend several I work with or the local bar association referral service can provide you with names) to determine if your concept is subject to a patent or some other formulae protection.
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