Legal Geek No. 34: IP for Food Recipes?

Welcome back to Legal Geek. This week, we take a look at an interesting question that walked into my real life office this week, just like the interesting characters that walk into Saul Goodman's office.

https://archive.org/details/LegalGeekEp34

One of the recurring "great ideas" that many people seem to come up with are new recipes for food items. Indeed, just this week a potential client asked about patenting a new food recipe, and the inquiry is more common than you might think. The most memorable of these interactions since I started practicing law was with a man who believed he invented the cheeseburger taco 5 years ago, and a quick Google image search quickly ended that notion.

But are food recipes protectable with patents or any other IP?

The general answer on the patent side usually ends up being no, but not because food recipes are disqualified from patent protection. On the contrary, recipes can be patented if novelty and non-obviousness over the known prior art in the food preparation field can be shown. The problem is proving some sort of unique peculiarity or counter-intuitive feature that would make a food recipe a non-obvious improvement over what is already known. It's usually an incredibly difficult hurdle to overcome for this type of invention.

Trademarks cover business names and product names, so recipes do not really come under the scope of that type of IP. While trade secrets can be used to protect recipes like the famous Coca Cola secret recipe, this is not the type of protection most food connoisseurs are interested in, especially if public recognition or exclusivity is desired

That leaves copyrights, which have long been the recommended path for creators who just want to have some protection and/or a certificate on the wall. However, copyright protection requires originality in the creative expression, which means underlying facts are not protectable even if the creative organization or way the facts are expressed are protectable.

Last week a Cleveland federal court made some headlines by confirming that food recipes in a recipe book cannot be copyrighted so as to block other competitors from using the same set of ingredients to make a food product. This decision is in line with many other court decisions over the years which have confirmed basic lists of ingredients and functional directions for combining them are not an original creative expression entitled to copyright. So copyright won't work either.

The bottom line: if you come up with a great food recipe, the only likely way to protect it with public IP would be by patent, and that would be a significant uphill battle in most circumstances. So share the wealth food junkies, and we will all benefit from your delicious creativity.

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