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Now that leaves are falling around here, we are in serious planning mode for our Thanksgiving feast. You may be surprised to find that many of the staple dishes on your table were once patent-protected inventions.

Don’t believe that you can patent food? Check these out:

TurkeyU.S. Patent No. 3,804,965“A Method for Roasting Meat”
StuffingU.S. Patent No. 3,870,803“Instant Stuffing Mix”
Mashed PotatoesU.S. Patent No. 3,275,458“Dehydrated Mashed Potato and Process for Making Same”
GravyU.S. Patent No. 3,615,600“Meat Flavor Composition containing Succinic Acid”
BiscuitsU.S. Patent No. 3,879,563“Refrigerated Biscuit Dough”
Cranberry SauceU.S. Patent No. 3,023,108“Processing for Preparing Cranberry Sauce”

Although the patents on these particular examples have all since expired, patents continue to be granted for food products and preparation processes. Does that mean you can patent the recipe for your award-winning pumpkin pie recipe? Probably not. It is increasingly difficult for food to surmount the requirements of filing a patent.

Luckily, your pumpkin pie is “a composition of matter” and therefore statutory subject matter 35 U.S.C. § 101, but it must also be useful, novel, and non-obvious under 35 U.S.C. § 102 in order to be granted a patent. The main battlegrounds are novelty and non-obviousness, because any edible food is inherently useful.

The novelty requirement will prevent the issuance of a patent if an invention was ever published, known or used in the public, invented by another, or described in another patent. Perhaps your pumpkin pie uses a new sugar substitute or is made from a new variety of pumpkin or includes a unique ingredient in the piecrust. As long as your pie is truly new, you are good shape. However, if you’ve ever offered your pie for public consumption, even if you have kept the recipe secret, that may be considered public disclosure that could prevent patentability.

The major hurdle for your pie patent is overcoming the non-obviousness requirement. An invention must be different enough from other pre-existing inventions, such that “a person having ordinary skill in the area of technology related to your invention” would view it as non-obvious. This means that trivial changes like amounts of ingredients are simply not enough, especially not from the perspective of another chef (the person of ordinary skill here). Essentially, your pumpkin pie must include something unexpected.

With so many restrictions, how do new foods survive the patent process? Most are foods that are manufactured on a large scale and found in the aisles of your local grocery store. Here are a couple of ways foods have been classified as new and non-obvious to received a utility patent:

For Diets

  • Sugar-substituted and reduced-fat foods: Sugar-free chocolate crumb confection (U.S. Patent No. 7,867,544) and low fat food product (U.S. Patent No. 5,484,622)
  • Gluten-free: Gluten-free food compositions (U.S. Patent No. 8,685,482)

For Convenience

  • Microwavable: Method for making a microwaveable sponge cake (rises when microwaved) (U.S. Patent No. 6,410,074)
  • For Improved Shelf Life: Shelf stable cookie product (U.S. Patent No. 5,079,012)

Most patents for the more “traditional” foods have already expired, so you are free to make any of them – you could even use the patents as recipes themselves!

The whole point of patents is to grant a temporary boon to an inventor in exchange for teaching the public how to make and use a new invention. So when you’re setting your table this Thanksgiving, you may want to thank a few inventors in addition to your mom (or dad) for teaching you how to make those dishes!