by: Joseph Page
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Food Patents

Is food really patentable? YES!

Food Patents

Can food be an Invention? Sure!!! Many, many patents have been granted for food products. Here are a few of the more interesting food inventions. It is probably better if you take this article with 'a grain of salt' – some of the following patents might make you chuckle. Others are quite serious indeed and have resulted in large profits for giant multinational companies who are serious about protecting their innovations.

One quite funny food patent that has now become quite famous is the "Bread Refreshing Method" presented in U.S. Patent 6,080,436. Stale bread may be made a bit better by 'Flash toasting' the stale bread at a high temperature. Yep, that is about it. Admittedly, this all seems a little strange. Having we seen toasted bread before? Where is the novelty? You wouldn't imagine that a patent examiner would allow that – however, they did. It raised quite a stir with the folks who love to criticize the patent office. However, if the examiner was unable to find anything which showed people were doing this before, then he must issue the patent. I didn't check myself, but maybe this was a good patent examiner who simply could not find anyone putting stale toast on a very hot toaster. Who knows?

Breaking news!!!! New invention: Peanut Butter and Jelly
Len Kretchman and David Geske, were granted U.S. Patent 6004596, "Sealed Crustless Sandwich" - a peanut butter sandwich sealed at the perimeter sans crust – Yum!. The J.M. Smucker Co. bought the patent from the inventors and developed a commercial product based on the patent. Smuckers invested $17 million in a new factory to produce the product. By 2005, sales had grown to $60 million a year with a 20% per year growth rate.

Various other patents for similar food products include: 2,463,439; 3,782,270; 6,874409. Seriously crowded field this crustless sandwich arena is J. Whenever one figures out how to sell $60 million a year in peanut butter and jelly, it is for a very important reason. Which brings up another important patent concept. Although this patent was finally held to be obvious by the Court of Appeals, the patentees forgot to argue a very important principle of the obviousness test. In an important prong of the obviousness tests, so-called 'Secondary Considerations', if strong commercial success are evidenced, a previous holding of obviousness may be withdrawn and the patent stands valid.
Smuckers attempted to enforce their patent rights by sending out cease and desist letters and by expanding their intellectual property coverage via the patenting of a machine to produce Smuckers' PB&J sandwiches in high volume U.S. Patent 6,874,409 "Method and apparatus for making commercial crustless sandwiches and the crustless sandwich made thereby". The U.S. Court of Appeals for the Federal Circuit, however, rejected the viability of the patent citing its similarity to existing processes such as that of fashioning ravioli or pie crust.

Food Configurations
One way to provide some form of protection your food product – even if there is absolutely nothing new about the recipe or arrangements of parts – you could get protection for its appearance. If you make a food product in a particularly pleasing aesthetic design which is completely new, you will be entitled a 'design patent'. A design patent protects the appearance and aesthetic value of something. While others will still be able to strictly make the recipe, they won't be able to make the product into the shape and appearance which is subject of your design patent. The good news is, a design patent is often far less expensive than a utility patent (the most common type).
If you look at U.S. Patent D661,046, you'll notice that one cannot even tell what food or even which category of food is protected.

Just the shape is protected. Therefore, in view of this patent, you can't make jello, cookies, rice crispy cakes, brownies or any other 'food product' in the shape of a dollar sign as described in this patent. Surprising eh? I am surprised too. But this means some patent examiner: (actually Examiner Barbara Fox) found this shape to be novel and not obvious. Sometimes it seems like everything is patentable. One good rule of thumb – if you haven't seen it precisely the same previously, then it is likely patentable.

One can patent both the food product and the method of making the food product all in one single patent. This can be considered an efficient use of a patent as both most important types of patent are used but you only have to pay for one single patent application. One good example of this patent strategy for food products is illustrated by an invention for an ice cream sandwich.
Ice Cream Sandwich And Method of Making the Same
Yep, here is a U.S. Patent 5,789,008 for an Ice Cream Sandwich. While the ice cream sandwich has been around for many years, this version of an ice cream sandwich was determined to be new, useful and not obvious. Awesome. Woodrow Monte of Tempe, Arizona (it is pretty hot in Tempe, and therefore ice cream sandwiches are pretty popular there) can prevent you from making, using or selling any ice cream sandwich in accordance with this teaching.

Food which has a functional nature about it is a good candidate for patenting. The following example illustrates a food product which serves a particular need as its special arrangement provides for new uses of breakfast cereals – that is you don’t need fresh milk to enjoy these.
Cereal Having a Functional Coating
Arthur Krause, a brilliant inventor with a keen sense of humor and a belly laugh to go with it, invented "cereal with milk – just add water" with his friend and long-time business partner Walter Lim and this idea is presented in detail in U.S. Patent 6,051,262. Fresh milk isn't always available. But, cereal is a very handy breakfast and usually is best when served with milk. However, with Mr. Krause's product which is cereal that has been coated with a powdered or dried milk, one just adds water to the dried product combination to yield a delicious breakfast – anywhere. Good going Art. Mmmm!

Holy Deep Fried Burrito!
Another fun food patent is the deep fried burrito. As if a burrito wasn't already loaded with fat, lets find a way to make it absorb even more fat! U.S. Patent 4,399,156 is a granted patent for fried burrito on a stick. Nice one.

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