by AnthonyClaiborne | Aug 15, 2023 | News
You’ve come up with a really great barbeque sauce, better than any other you have ever tasted. How can you protect your unique creation and make sure nobody copies your delicious sauce? Can you patent it?
What a Patent Is
and What Barbeque Sauce Is
A patent is the exclusive right granted by a government to the inventor to make, use, sell and import the inventor’s patented invention. A patentable invention is any useful, new and non-obvious article of manufacture, apparatus or machine, process or composition of matter. A finished barbeque sauce is simply a composition of matter. The question is whether the sauce is patentable.
A barbeque sauce is certainly useful. It adds flavor to and enhances the enjoyment of foods, particularly barbequed foods.
Your barbeque sauce is also certainly new. To the best of your knowledge, nobody has made a barbeque sauce anywhere near as good as yours.
The problem with patenting your sauce has to do with obviousness. You have made your sauce by combining ingredients which, even if they are exotic, are known as food ingredients to those in the culinary arts. You may have prepared the combination of ingredients in your sauce by some process, such as boiling, roasting, steaming, and so on. But these processes also are known to persons in the culinary arts. What likely makes your sauce unique is the proportions of ingredients that you have used to get just the right balance you were looking for in the sauce. From a patenting perspective, though, obtaining results using known methods varying proportions of known ingredients is regarded as obvious. Sadly, your barbeque sauce, like most recipes for almost any food, is probably not patentable because it is obvious from the perspective of patent law.
All is no lost, however! Recipes for foods can be protected with intellectual property other than patents. You don’t have to disclose the exact proportions of ingredients you used in your tasty sauce. If you guard the proportions as confidential, you can protect the intellectual property in your recipe as a trade secret. Think of the formula for Coca Cola, or the special blend of 11 herbs and spices in KFC and you can see the power of trade secret protection for recipes.
Further, you can protect a proprietary recipe with branding and trademark. While there are many hot sauces out there, everybody knows Tabasco® sauce. Associating a strong and unique mark with your sauce will help distinguish it in the marketplace and protect you from competition by imitators.
To see what your options are to protect your fantastic barbeque sauce, consult with an intellectual property attorney for further guidance.
by AnthonyClaiborne | Jun 15, 2022 | About Trademarks
A patent is an instrument of commerce. If patenting your invention will give you added commercial advantage that outweighs the cost of patenting, then patenting is indicated. If patenting will give no such advantage, we recommend you exploit your invention in other ways. A patent is an instrument of commerce. If patenting your invention will give you added commercial advantage that outweighs the cost of patenting, then patenting is indicated. If patenting will give no such advantage, we recommend you exploit your invention in other ways.
Initially, you should determine whether there is a good chance that a patent may be obtained for the invention in the first place. You are entitled to a patent for your invention, unless your invention just doesn’t work (it is inoperative), or it is not new (it lacks novelty or is obvious). If the invention works, or if it seems that it will work when it is practiced, the invention is arguably operative. If there appears to be a substantial market for the invention and there is nothing like it out there, there is probably a strong enough argument for the invention’s being new to justify considering patenting seriously. A patent novelty opinion from a patent professional can be helpful in making this determination.
If it appears that a patent may be obtained for the invention, the inventor should then decide whether patenting the invention is justified. A number of factors can enter into this decision.
First, is the invention advantageous, that is, does the invention provide an advantage (e.g. better, faster, cheaper) over what was done before? The more advantageous a technology, the more patenting may be justified.
Second, is the invention differentiating, that is, would the goods or services provided by someone practicing the invention be different from similar goods or services provided by someone not practicing the invention? More differentiating technologies also argue in favor of patenting.
Third, is the invention customer-facing, that is, does the practice of the invention directly affect the customer? Improved manufacturing methods for existing articles, for example, are not customer-facing, while improvements in the articles themselves may be. More customer-facing technologies also argue in favor of patenting.
Fourth, would a patent directed to the technology be enforceable against infringers? This analysis focuses on whether the nature of the invention permits detection of infringement (improvements in manufacturing processes sometimes presenting difficulties here), and whether significant damages may be obtained from infringers (really going to the ultimate value of the technology). If a patent to the technology would be difficult to enforce, patenting may not be justified.
Fifth, will a patent to the invention have value in the future, when the patent finally issues? Patenting an invention takes time. In addition to the time to prepare and file the patent application, it can and often does take three years or more from the date a patent application is filed until a patent issues for the invention. Will the technology of the invention still be advantageous or even relevant when the patent issues? In some fast moving areas of technology, the answer to this question may be negative, and if so, patenting is not justified.
Ultimately, the decision to patent an invention is a business decision. Patenting is never inexpensive and should be pursued only when it makes business sense. If your technology is valuable, but patenting may not be justified, consider other ways to protect your technological advantage, such as the use of copyright and trade secret law, which may give you the IP edge you need without the expense of patenting.
by AnthonyClaiborne | Jan 17, 2022 | About Patenting
An inventor may wish to file a provisional patent application if the inventor is not ready to enter into the regular examination process, typically because of time or money constraints. A provisional application establishes a filing date at a lower cost for a first patent application filing in the United States and allows the term “Patent Pending” to be applied to the invention.
A provisional patent application serves only to establish the filing date for the patent application and automatically becomes abandoned after one year. The U.S. Patent Office does not examine a provisional application and such an application cannot become a patent. An applicant must submit the non-provisional application within one year of submitting the provisional application in order to possibly receive the benefit of the provisional application’s filing date.
Claims are not required in a provisional application. Our firm’s provisional patent applications generally include exemplary claims, however, to serve as examples of the invention for any later filed non-provisional applications.
At least one drawing is required in a provisional patent application. While it is not necessary to have the drawing made by an experienced patent draftsman, preparing a formal drawing for a provisional filing can save time and expense when a non-provisional patent application is filed later.
The filing fee for a provisional patent application is modest (as low as $75 for an individual inventor as of January 2022). Legal fees for preparation are also lower, but extra care paid to preparation can reduce time and fees for the later non-provisional application.
As an incentive for engaging us, our firm discounts your fee for a later filed non-provisional application by the fee you paid us for your prior provisional application.
by AnthonyClaiborne | Oct 23, 2021 | About Patenting
A design patent relates to a new, useful and ornamental article of manufacture. When most people think of a patent, they think of a utility patent directed to a technological invention: an article, apparatus, process or composition of matter that is useful, new and non-obvious. A design patent is a different kind of patent.
Just as with a technology utility patent, the patented thing must be new and non-obvious. But it also must be ornamental. It must embody an ornamental design or reflect ornamental or aesthetic judgment beyond that required to make an efficient, functioning article.
For example, the well-known Bic ballpoint pen is an article of manufacture. It incorporates various ornamental features, such as a transparent body of six-sided cross-section, a gold plastic tip assembly, an internal translucent tube for holding the ink, and an end cap whose color is that of the ink contained in the pen. In these respects, the pen incorporates various elements of aesthetic judgment and therefore could be protected by a design patent.
The degree of aesthetic judgment required to confer ornamentation on the design of a functional article of manufacture, however, is not terribly high.
While the duration of a technology utility patent is generally 20 years from the date the patent application was filed, the duration of a design patent is 14 years from the date the patent has issued. Also, while maintenance fees (payable at 3, 7 and 11 years after issue) are required to keep a utility patent from lapsing, no additional fees are due for a design patent after it issues.
The scope of protection for a design patent is different from the scope of protection for a technology patent. A design patent prevents others from making articles of manufacture that have the same (or equivalent) ornamental features as the depicted invention. Both utility and design patents enable their owners to place a patent marking on articles of manufacture that practice the patented invention, which significantly discourages competitors from attempting to market similar articles without a license.
If embodiments of your invention have ornamental aspects, consider applying for a design patent to further protect your intellectual property.
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