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.
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