Saturday, April 5, 2008

Recipes: Copyright or Patent?

There's usually only one reason people come to the Government Information Center to learn about recipes, and it's not to get cooking tips (although a I've heard good things about the Army's biscuit recipe).

Generally, people are interested to know what kind of intellectual property rights they have when they create a recipe. It's an interesting question -- can you copyright food? What about a patent?

It really depends. Since I'm a librarian and not a lawyer, I can't give affirmative advice, so I usually recommend that people do some reading about copyright and patents. That advice isn't a cop-out, though. The guidelines for patents and copyrights are generally short on concrete statements, as in "you can copyright this" or "you can't patent that." Do some research - if the intellectual property protection fits, then wear it.

There are some instances where companies choose to never seek IP protection. Why? Because registering either a patent or a copyright requires disclosure and only offers protection for a limited time. (Think Coca-Cola, the recipe for which is probably the most talked-about trade secret in the world.)

So what if you're a home cook and you've struck gold with your recipe but don't have the resources to bring it to market yourself? Can you pitch it to the big companies without fear of their stealing it?

For anything to qualify for copyright protection, it has to have some aspect of creativity. It doesn't have to be much...the Copyright Office isn't in a position to tell you that your poetry is derivative or that your painting is boring. There is, however, a minimum requirement that may exclude some recipes from qualifying for copyright. Stephan Fishman writes about this in The Copyright Handbook:

...[T]here are some types of works that are usually deemed to contain no creativity at all. For example, a mere listing of ingredients, or contents, such as in a recipe, is considered to be completely lacking in creativity and is not protectable (but explanatory material or other original expression in a recipe or other list is protectable). from Fishman, Stephan. "The Copyright Handbook." Berkeley: Nolo Press, 2006. pg. 124-125 (at SFPL)
So your potatoes, parsnips, persimmons, and whatever else you put together to make a dish probably can't be protected by copyright. But the way you write the recipe may. Which would mean that you couldn't stop people from making your recipe but you could stop them from copying it verbatim and distributing it the way you wrote it. That probably won't go too far in protecting a recipe.

A patent gives the owner rights to keep people from producing the patented item, which means a person holding a patented recipe could conceivably keep people from using the recipe to cook dinner. Patent Class 426 covers "Food or Edible Material: Processes, Compositions, and Products." So there's a class for food products, which means we know that you can patent a recipe.

There are a couple of things to consider before going to the expense of patenting a recipe, though. First, how will you enforce the patent? Remember that a patent is an offensive right, meaning that it's up to the owner to seek out infringers and seek damages in court. This would be easy enough if you could prove that McDonald's was marketing your potato salad recipe. But what about people in their home kitchens? It may not be practical to enforce a recipe patent.

Second, will the patent even be granted? An invention has to be original and produce a new or unexpected result to be granted a patent. Is the result of your combination of ingredients and the process of cooking a surprise? Take a look at David Pressman's example from Patent it Yourself:
Lou comes up with a way to make mustard-flavored hot dog buns -- admix powdered mustard with the flour. Even though Lou's recipe is novel, the PTO will almost certainly hold it to be obvious to a PHOSITA ["person having the ordinary skill in the art," a standard in patent examining] since the result of the new combination was entirely forseeable and expected. from Pressman, David. "Patent it Yourself." Berkeley: Nolo Press, 2006. pg. 106 (at SFPL)

It's tricky! That unobvious requirement can be hard to predict. I always start with a Google search to see if there's any evidence of someone else working on something similar. There often is, which means a dead end for any intellectual property protection.
There are lots of factors to consider before you try to protect a recipe, maybe more than there would be for a new widget or a new novel.

As always, anyone who is serious about pursuing intellectual property protect would do well to consult an attorney or agent. Or, at the very least, check out some of the resources at the Patent and Trademark Center.

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