I am sometimes asked – as I am sure most patent attorneys are – whether it is possible to patent a recipe. This provides a sufficient connection to the subject matter of this blog to allow me, as a special ‘Easter report’, to post my recipe for hot cross buns, which is surely not patentable. But first, for those who are actually interested, I shall explain how recipes are treated under the patent laws.To put it simply, the answer to the question above is, in the vast majority of cases, ‘no’.
Gene Quinn over at his IP Watchdog blog wrote a nice piece on this topic back in February, explaining why most recipes are not patentable in the US (see The Law of Recipes: Are Recipes Patentable?). In that country, the primary barrier to patenting of recipes is obviousness, i.e. lack of inventive step.
While a new recipe for baking a cake, or making a cocktail, might be technically ‘new’ (i.e. pass the novelty test) because the particular combination and/or quantities of ingredients have never before been published, it will almost certainly be a variation on one or more existing recipes. Under the US law of obviousness, you cannot invent something patentable just by trying various different combinations of known elements in a recipe until you have something that you swear is better than mum’s (or mom’s) version!
Tags: Australia, Patent law, Personal, Recipes
