Can You Patent A Recipe? Ctd

Feb 23 2012 @ 7:37am

A reader writes:

As a patent attorney, that simple one-word answer to the question of "Can you patent a recipe?" is the bane of my existence.  The question shouldn't be "Can you patent a recipe?" but rather "Is it worth patenting arecipe?"  The answer to the former is "Yes" and the answer to the latter is almost always "No". In fact, it's been done!  See here for a brief discussion of current chefs patenting recipes, and here for a toaster cookie recipe that I use as an example when I'm training engineers or other lawyers about patents. 

But that doesn't mean it's a good idea for your everyday chef. 

Would you have to have spies in competitors' kitchens to assess whether there was infringement?  Wouldn't a typical award for infringement just be the cost of the meal?  Why are you setting up roadblocks in something has been historically a collaborative venture between chefs?  Moreover, there are serious costs associated with filing a patent application, getting that patent application granted, and maintaining that patent through the years.  For a single, simple patent I would say that an average cost throughout its lifetime of 20 years is somewhere in the neighborhood of $15,000.  And that's just the US!

The only time I've seen recipes enforced is in large commercial operations.  Think bakeries that have to turn over thousands or tens of thousands of individually baked products in a day, or large operations that perform massive cooking operations to fill frozen dinners.  And those recipes often have interesting chemicals added or have recipes that have unique steps performed in a certain way to make the product that is output uniform and able to withstand long wait times (whether from the bakery to the bread shelves or in a freezer).  As an example, frozen potatoes used to require partial cooking before being frozen, and there was a patent by Swanson that involved such a process that was, in essence, a recipe for making frozen potatoes.

So, yes, you can patent recipes. But it's only useful to do so in very narrow circumstances.