Do your friends beg you for recipes to your banana and espresso bread? Or your authentic southern chilli? Have you even started to sell your unique creations and are now wondering how to protect them? Below, we set out whether you can patent your recipe.

Can You Patent a Recipe?

A patent is a legally enforceable right granted for a device, substance, method or process that is novel, inventive and useful. In short, you can’t patent the majority of recipes because they lack an inventive step and as such, don’t qualify. Although your recipe might seem new, unique and previously unavailable to your market, a patent won’t offer your recipe the protection you are after. 

What’s the Position in the US? 

In the US, if the quantity or combination of ingredients doesn’t seem to have ever existed before, you may be able to patent your recipe. Typically, however, your ‘new’ recipe is a variation of an existing recipe, and you can’t patent a different combination of ingredients already in existence. 

What’s Australia’s Position?

Under the Patents Act 1990 (Cth), applicants must satisfy the inventiveness test. However, the Patents Commissioner can refuse to accept a standard patent request because the substance is either: 

  • Capable of being used as a food or medicine and is a simple mixture of known ingredientss (section 50(1)(b)(i)); or
  • Is produced by mere admixture (section 50(1)(b)(ii)). 

Section 2.9.7 of the Australian Patent Examiner’s Manual provides additional guidance on how to interpret section 50 (1)(b)(i). Capable of using the substance as food includes mixtures that you need to cook or prepare before eating. Under the Patents Act 1990, mixtures such as baking powder, food colouring and other additives can be patented if the end product is food.

Understanding Your Recipe’s Legal Position

So what does this all mean for your family’s recipe for the best apple pie? In Australia, generally speaking, you can’t patent a process that involves mixing or cooking ingredients that produces something edible. 

Patentable Recipes

Unless your recipe is distinctly novel, you are unlikely to patent a mere mixture of ingredients successfully. This is because a “mere mixture of known ingredients” should interact in a predictable way for the properties of the ingredients used. 

Similarly, in the U.S. if you uniquely use an ingredient, then it might be considered an invention. For example, if a particular ingredient extended a product’s shelf life or provided a functional benefit to the body that was previously not there, you may be able to patent this recipe. Stateside, patentable characteristics of food include:

  • Shelf Life,
  • Shaping,
  • Appearance,
  • Special diets,
  • Combinations,
  • Texture,
  • Moisture protection,
  • Microwavable,
  • Flavouring,
  • Smoothness,
  • Convenience, and
  • Low calorie.

Unless you are a psedo-science chef, you’re unlikely to patent your recipe in Australia, but that doesn’t mean you can’t protect your secret sauce. We look at how else you can protect your recipe in our next article. In the meantime, if you have any questions, just ask our intellectual property lawyers. 

Sophie Glover
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