As illustrated by the three-part Recipe for Protection, Anyone? series (January 2013), be it an owner, artist, baker, entrepreneur, available at their disposal are different ways to protect their creations, their interests.
Top Secret under Wraps or Unwrapped.
Grandma’s recipe comprises the shopping list of ingredients, the mixing process and the baked cookies, the final product. So how does one protect their latest culinary creation from being copied or control who and/or how it is used? A patent is one way to seek such protection, but one has to be fully aware of the scope of protection offered and how that compares with alternative forms of protection, such as Trade Secrets.
A patent will prevent others from using, reformulating or reverse engineering it without permission of the owner during the period of protection provided, the recipe meets certain requirements.
For a recipe it must never have existed before, otherwise it would have to involve an alteration or obvious improvement of a previously known recipe that could not be determined by one skilled in that field or area of expertise.
Mixing up known ingredients in varying quantities, for example instead of three (3) teaspoons of nutmeg, reducing that to half that measure in Grandma’s cookie recipe, could still be considered obvious.
Merely adding another ingredient, for example, fresh ginger or cardamom to my cookie dough mix may result in an unexpected taste but not an unexpected result. The properties of the flour, butter, eggs, milk, sugar and oats are well known, such that making changes to the order or the process of adding these individual ingredients often yields expected results, that may be obvious to one skilled in the culinary arts.
However, where the combination of the ingredients results in oatmeal cookies that are totally unexpected, such a creation may be patentable. Typically, such results or discoveries are from extensive experimentation over a period of time.
On the other hand, there is protection in the form of Trade Secrets. This is protection offered by the state and is used to protect the oatmeal cookie recipe by not disclosing the formula or and the process of making the cookies.
Unlike patent protection, which prevents others from recreating Grandma’s patented cookie recipe without permission, trade secrets protect against the disclosure of the recipe.
Trade secrets can be divided into two groups; those that meet and those that do not meet the patentability criteria. Trade secrets such as customer lists and manufacturing processes fit into the former group.
Should I or Should I not file for Patent or Trade Secret protection of Grandma’s Oatmeal Cookies?
How Long Do I have Protection for? Trade Secret protection is for as long as the secret is not disclosed to the public but Patents generally last up to 20 years.
Is it Going to Involve any Fees? No fees to register a Trade Secret but may involve costs to keep it confidential. There are patent application filling fees and maintenance fees, if a patent is issued.
Trade secrets have immediate effect. A patent application is filed and then a determination is made as to whether there is a basis for issuing a Patent at which time patent protection is granted.
- Trade Secrets do not provide an exclusive right to exclude third parties from making commercial use, but Patents can provide this type of protection. (See World Intellectual Property Organization, SME).
The final decision to protect Grandma’s recipe is up to the person who owns the rights to the recipe or invention and since this does not constitute legal advice, consulting an Attorney is advisable. An intellectual property lawyer would be better able to assess the legal significance of federal versus state registration of the claimed invention or recipe and any other protections an owner should seek.