If I have an idea for a new recipe, do I need a paten or a copyright to protect my rights?

One of the most common questions I receive, dating back to the very beginning of IPWatchdog.com, is whether recipes can be protected by any form of intellectual property.  Typically the question presents specifically by a reader asking whether a recipe can be patented, or how once can patent a recipe.

In most cases the typical recipe for a “killer Margarita” or “the best barbeque sauce ever” will not be patentable because they won’t be unique enough, typically failing on the non-obviousness requirement.  Of course,  the only way to know for sure is to understand how the Patent Office reaches its conclusions relating to what can and cannot be patented.  It is certainly possible to obtain a patent on a recipe or food item if there is a unique aspect, perhaps if there is something counter-intuitive or a problem (such as self live or freshness) is being addressed.  The trick will be identifying a uniqueness that is not something one would typically think to try.

Can a Recipe Be Patented?

Determining whether something is patentable requires analysis of several different patentability requirements:

1. Is the invention patentable subject matter?
2. Is the invention useful?
3. Is the invention novel?
4. Is the invention non-obvious?

If the answer to all of these questions is yes then you have something that can be patented, provided of course you need to describe the invention in a patent application to satisfy the disclosure and description requirements of U.S. patent law.