In the food and beverage industry, the potential for various forms of patent or related protection may sometimes be overlooked. Utility patent protection may be available for improvement and innovation in food science and technology, including a process or software, machine, manufactured product, or chemical or biological composition. For instance, you can seek utility patent protection for improvements in kitchen appliances or utensils, manufacturing or packaging equipment. New and innovative packaging constructions themselves may be patented as articles of manufacture. Even new product formulations or recipes have the potential for protection as processes for producing the end food product. Moreover, end products themselves may be protectable by exhibiting improved and unexpected results or qualities, such as longer shelf life or surprising nutritional benefits.
Design protection, which is sometimes the subject of patent law, may be available for an ornamental design for a useful article, such as an innovative container or bottle ornamentation or shape. A unique shape of a food product itself, such as a biscuit or a confectionary item or even the layout of foods in a chef’s plating, may possibly qualify for design protection. Whether or not a design is protectable under patent law, other forms of protection may be available, including copyright, trade dress, and design-specific law.
New plant varieties may be protected via patents or other forms of protection, depending in part on the particular country of interest. A plant patent in the United States can provide protection for an asexually reproduced new plant, such as a new tomato or cucumber variety. Plant patent holders have the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts. The U.S. Department of Agriculture separately grants plant variety protection that applies to sexually reproduced plants for those plant varieties that are new, distinct, uniform, and stable.
As a potential alternative to utility patents, trade secrets allow for the protection of information maintained confidentially for commercial benefit over competitors who do not possess the information and can include a formula, method, technique or process. As protection arises from the maintenance of secrecy, the holder of a trade secret must take steps to ensure that the information will not be publicly disclosed, typically by limiting access to the information only to essential employees and collaborators who agree to non-disclosure to others not similarly bound. Some well-known examples of trade secrets include: Coca-Cola’s cola formula, KFC’s fried chicken batter recipe, and Krispy Kreme’s doughnut manufacturing process. Unlike patents, trade secrets do not require any registration and continue indefinitely until public disclosure, but do not prevent others from independent discovery or reverse engineering. The disclosure requirements for a patent, on the other hand, may facilitate the ability of others to design around and thus avoid the patent on the claimed invention. The decision of whether to protect something as a trade secret or a patent may therefore depend on the ability or inability of others to discover or work around the innovation.
