In the past several years, the food and beverage space has seen an explosion of innovation—alternative meat products, plant-based dairy and protein alternatives, CBD- and collagen-infused everything, and functional foods and beverages and containing everything from pre/pro/post-biotics to nootropic and adaptogenic herbs, just to name a few. And many of these innovations have led to wildly successful products with household brand recognition (think: Impossible Foods and Vital Proteins).

While many of these brands may be protected by robust trademark portfolios, what role have patents played in defining their territory in the market? Patent protection can add significant value to an emerging brand by keeping competitors at bay, serving as an asset or collateral to secure financing, or as leverage to license across different industries or markets. Yet, the vast majority of conventional foods occupying the shelves of your local grocery store are likely not covered by a utility patent.  Which begs the question, are food products patentable?

The short answer is: yes.  In fact, the United States Patent and Trademark Office recognizes that “[n]umerous patents on food products are issued each year.” But the road to patentability for a food entrepreneur is not easy.

Any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is eligible for patent protection according to Section 101 of the Patent Act (35 U.S.C. 101). As explained by the United States Patent and Trademark Office, a food product or list of ingredients can fall into the categories of a composition of matter and/or manufacture, and the way the food product is produced can fall under a process.

But, in addition to qualifying as patent-eligible subject matter, an invention must also be “new” and “nonobvious,” under 35 U.S.C. 102 and 35 U.S.C. 103, respectively. A recipe or food product satisfies the novelty requirement of Section 102 if it is not already known. Any articulatable difference between the invention and what is already known in the prior art is sufficient.  Under the Section 103 inquiry, a food-based invention may be considered “obvious,” and therefore not patentable, if the differences between the invention and the most nearly similar thing already known would be obvious to a skilled artisan in the field of the invention. To be non-obvious, the subject matter sought to be patented must be sufficiently different from what has been used or described before.  Thus, a food product or recipe will not be patentable if it already exists, or is an obvious improvement or alteration of a previously known invention.

The novelty and obviousness requirements tend to pose the largest hurdle for those seeking to patent a recipe or food product. And it makes sense—humans have been mixing together ingredients to produce different food products for centuries, and so the body of prior art for obviousness rejections is expansive. Its hard to imagine a recipe that has never been contemplated, described, used or sold by anyone anywhere. In fact, most “new” recipes are merely combinations of known ingredients in varying amounts, or are variations on known recipes. And the outcome of these recipes is typically expected. As put by the USPTO, “the more sugar one adds to a cake batter, the sweeter the finished cake is expected to be” or “adding tarragon to a dish that doesn’t usually include tarragon may result in an unexpected taste for that particular dish, but not an unexpected result.” Those in the culinary arts well understand the way different ingredients and materials behave, and know that making changes to the order or method of adding ingredients often results in something expected.

The threshold of originality and creativity for food compositions and recipes to be patentable seems to be 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 appeals 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.” 178 F.3d 948. Not surprisingly, foods produced by combining traditional ingredients and using standard cooking or preparation techniques are unlikely to meet these requirements.

So, is there a path to patentability for food products and recipes?  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.”  Id. 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, where a new combination of known ingredients provides a previously unknown synergistic effect, the combination may be patentable.

The USPTO suggests that where “the combination of ingredients used, or the way they are processed, results in a food product totally unexpected,” the product or process may be patentable. So, if the recipe or process steps involve aspects that are counter-intuitive or go against what one skilled in the culinary arts would expect, they may be patentable. An unexpected substitute for a standard ingredient, or an additive that provides an unexpected effect on the properties of the resulting product, may clear the obviousness hurdle.

Food innovations that solve known problems or impart benefits such as improving flavor, improving texture, increasing shelf life, making foods “heathier” (i.e., reducing calorie count, making vegan, removing gluten, etc.), making a food easier to cook (e.g., microwavable), in a unique, unexpected or synergistic way may therefore be patentable.

Thus, it is absolutely possible to obtain a patent on a recipe or food item. In addition, new manufacturing or processing methods, innovative packaging, and even food-related software applications are also viable and valuable options.