Recently, in an entertainment program called Maritel, Mr. Gura Kim invited a “Ramen Master” with an international ramen patent and talked about ramen. The “Ramen Master” said that he had applied for a patent for the ramen broth he developed in Korea and other countries, but failed in the patent application in the United States. “What if my recipes that all my friends say are delicious should be registered in the US?” and “Bulgogi is also popular in the US… How about patenting my special bulgogi sauce?” I like cooking even a little. This is a common thought for those who do. Can a recipe really be the subject of a US patent?
To answer this question, let’s look at how the United States defines what can be patented. In the Patent Act, a patent is defined as “a new and useful process, machine, product, or combination of things, or a new or improved state thereof (“new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”). stipulated (35 USC 101). There is also a condition that the invention must be novel (new/ novel) and non-obvious (35 USC 102 & 35 USC 103).
So, does a recipe fit the definition above? A recipe consists of commonly used ingredients, how to mix and cook ingredients, and the result. An ingredient can be seen as a composition and a cooking method can be seen as a procedure, making it a patentable subject. But I’m having trouble judging whether a recipe is “novel” or “non-obvious”. Because there have always been similar foods.
People may have been using a direct fire to grill the meat, and they may have sprinkled salt on it or seasoned it since not too long ago. The ancient form of bulgogi was a type of meat marinated in soy sauce called maekjeok, a dish served to valuable guests during the Shilla period. In other countries, even if it is not soy sauce, it is common to use a variety of sauces for seasoning, and similar recipes can be easily found in China and Southeast Asia where soy sauce is used. It’s too common to be called “new/novel”. Even if our house’s Bulgogi is so delicious that it’s different from our neighbor’s Bulgogi, it’s not easy to be “novel”. Even if you increase the amount of sugar as a secret to making it delicious, or use plum syrup instead of sugar for health, the result is likely to be “obvious”.
That doesn’t mean that recipes can never be patentable. For example, if you combine ingredients or cook something, and the result is something new you never expected, you could be patented. And indeed, there are certainly patent applications for food. However, in the modern world, such food is usually not made in the kitchen, but rather comes from a laboratory or research lab of a food company.
Don’t be discouraged though. Even if you can’t patent the recipe itself, you can consider treating it as Trade Secrets. In fact, quite a few food companies use this method. The most famous examples are Coca-Cola’s Coke recipe, KFC’s spice ratios, and Bush’s Baked Beans recipe. The coke inventor does not disclose the coke recipe and requires employees to sign a memorandum stating that if they ever find out, they cannot disclose it. We also protect our goodwill by registering a trademark called Coca-Cola. However, even if it is treated as a trade secret, it does not provide complete protection like a patent, so if someone thinks alone and creates something similar to Coke, there is no way to prevent it. So Pepsi was born, and drinks similar to Coke were born. In addition, while patents are protected by federal law, trade secrets are subject to state law, with stronger or weaker application from state to state.
If you can meet the ramen master from Maritel, first keep the recipes as Trade Secrets, and with the help of a lawyer, write a non-disclosure agreement and get the signatures from the people you work with, We would like to encourage you to register your trademark and start selling.
If you have any questions about patents or other legal matters, please feel free to send them to firstname.lastname@example.org.