Is Food Patentable?

June 2011

In short, the answer is yes, as long as the requirements for patentability (utility, novelty and nonobviousness) are met; however, the vast majority of food products are protected as trade secrets rather than patented inventions. Although the ingredients are listed on the packaging, the process for making the food is not. For example, Cheetos® cheese flavored snacks contain enriched corn meal, vegetable oil, and a number of other ingredients. Even with the ingredient list, it would still be impossible to make a product that looks, tastes and has the texture of a Cheetos® cheese flavored snack without knowledge of the manufacturing process.

Unlike patents, there is no registration system for trade secrets, but certain steps must be taken to maintain the confidentiality of the information that is considered a trade secret. These steps usually include (i) written agreements with everyone who has access to the trade secret, (ii) restricting physical access to the trade secret (for example, locking the laboratory and limiting the number of people who are admitted to the factory floor), and (iii) segregating the manufacturing process so that very few people have actual knowledge of the entire process. Once confidentiality is breached, the information loses its status as a trade secret, and that status cannot be regained once the information is in the public domain. For that reason, it is important to work with an attorney who can recommend steps to protect confidentiality and visit with you periodically to ensure that your most important proprietary information remains a trade secret.

A patented invention is the exact opposite of a trade secret. The quid pro quo for obtaining a patent is full disclosure and enablement, which means that the inventor must fully disclose how to make the invention. If there is more than one way to make the invention, the inventor may not withhold from disclosure his or her preferred embodiment and discuss in the patent application only those embodiments that are less commercially valuable. Instead, the inventor must reveal all of his "secrets" so that technology can advance.

One thing to consider in deciding whether to protect a food product as a trade secret or a patented invention is that patent protection only lasts for 20 years (for utility patents and not considering patent term extensions), whereas trade secret protection can-in theory-last forever. Information maintains its status as a trade secret as long as the owner of the information takes affirmative steps to maintain its confidentiality and such confidentiality is not breached. In addition, according to the statutory definition of trade secrets adopted by most states, the information sought to be protected as a trade secret must have significant commercial value.

Many food companies have elected to go the patent route in protecting their food products. These patents sometimes cover the food product itself, but more often they cover the shape or design of the food product, the manufacturing process, or a method involving beneficial dietary effects of the product. For example, a patent for the Smart Balance® spread involves "a method of increasing the HDL concentration and the HDL/LDL concentration ratio in human serum by providing a balance between a sufficient and required proportion of cholesterol-free saturated fatty acids in the daily dietary fat...," etc.

Godiva Chocolatier, Inc. has patented a composite confection material suitable for incorporation as a center or filling in a food product (U.S. Patent No. 4,410,552). The composite center is comprised of semiplastic confection coated with an expanded fat-based jacket, etc. Frito-Lay North America, Inc. has patented a method for producing a baked snack chip made from a raw potato slice (U.S. Patent No. 7,867,535). The method involves pre-drying the potato slice, compressing and heating it, and then expanding it. Snapple Beverage Corporation has a design patent for the shape of its bottle (U.S. Patent No. D609,108).

In the Snapple example, the design of the bottle could not be treated as a trade secret because the bottle design is publicly disclosed, but in each of the other examples provided above, the manufacturers of the food products must have determined that the benefits of patent protection outweighed the benefits of trade secret protection. If there is a perceived risk that a food product "trade secret" could be reverse engineered, or if it is impractical to maintain the information as confidential, then the manufacturer may elect to pursue patent protection and enjoy a 20-year monopoly rather than to rely on trade secret protection.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.