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We live in a world full of intellectual property. For a long time now, engineering has used patenting to secure monetization from a particular invention. However, many "soft", e.g. untangeable, topics like computer software are patentable in several countries, with very mixed results (e.g., real inventors can't afford patenting, mathematical formulae being patented etc.). With engineering coming into food world, genetically modified vegetables and fruits become patented (e.g. Monsanto).

It all makes me wonder: to what extent are patents for food and in particular for recipes are possible in this world? Would it be possible for someone to patent something like lasagne bolognese and require license fees from cooks all over the world?

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Sachertorte comes to mind... –  nico Jul 24 '11 at 6:45
    
Publishing of a recipe that belongs to another is subject to rules of Copyright. If the person previously published the work, by web, cookbook or otherwise, and you re-post it without sufficient attribution and or deviation, you will be culpable for Copyright infringement. For more information on Attribution, check out this David Liebowitz write-up for Food Blog Alliance. –  mfg Oct 5 '11 at 15:43
    
It's been the consensus network-wide that legal questions are very dangerous to have on any site because we are not lawyers and don't want any content on this site to be construed as legal advice. I'm closing this as off-topic but, since it does seem to have some enlightening answers, leaving it un-deleted. Note to readers: We are not lawyers, and the answers to this question do not constitute legal advice. If you have a legal question, consult with a lawyer. –  Aaronut Jan 24 '12 at 23:09
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closed as off topic by Aaronut Jan 24 '12 at 23:09

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4 Answers

It depends on how broad your definition of "recipe" is.

First, as Cos Callis pointed out, a home cook won't be affected even if a recipe was patented. IP law (=intelectual property) is a matter of civil law, not criminal law. If you hit someone over the head, this is criminal law and the country where this happened will sue you and put you in jail even if the victim says to please not do it because they don't want you to go to jail. You are guilty of a crime the moment you did it.

In civil law, you can do whatever you please. But if somebody comes and says you hurt them (by breaking a contract, infringing on their trade mark, etc.) they sue you for damages. In Europe, you pay for their losses and trial costs. In the USA, they get awarded punitory damages which are usually multiple times their losses. But in either case, no patent holder has a financial interest in sueing a home cook (remember that sueing torrenters is a financial loss for RIAA even when they get 5-digit sums per song). And this being civil law, you are not guilty of anything until they point theif finger at you, even if what you did would be enough for a judge to find you guilty in court.

A restaurant, on the other hand, could have something to fear if recipes were patentable. A patent can be rewarded on either a device or on a technological process. A food item is not a device, so this is not possible. It would be feasible to see a recipe as a technological process, but to get a patent on it, it should be new and have some complexity. This is both not true for the processes used in traditional home and restaurant recipes. Whisking egg whites is as unpatentable as the wheel. Lasagne bolognese as a whole is unpatentable too, as well as newer variations of it. And even if a completely new recipe is invented, it will probably not be complicated enough, or will just consist of unpatentable steps.

The cases where a patent can be granted is in industrial scale food production. The machines which are used there can be certainly patented as devices. But the process itself can also get patented. For example, producing the mix for reconstituted mashed potatoes is covered by patents.

U.S. Patent 1025373, titled "Dehydrate Potatoes and Process of Preparing the Same", and describing a product that was to be reconstituted in hot water, was applied for in 1905 and granted in 1912.

Flake-form instant mashed potatoes date back at least to 1954, when two United States Department of Agriculture researchers were issued a patent for "Drum drying of cooked mashed potatoes" (U.S. Patent 2759832), which describes the end product specifically being "as a thin sheet or flake".

In 1962, Canadian scientist Edward A. Asselbergs was issued U.S. Patent 3260607, entitled "Preparation of dehydrated cooked mashed potato", for a particular industrial method of producing the product.

All of this is independent of trademark law. Trademark law means that you can het sued for selling "Hines catch-up", no matter whether you put ketchup ofr milk in the bottle. But you can sell ketchup made with their recipe with another name, and neither trademark nor patent law makes it illegal.

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+1 for citing good examples and some actual food patents. –  BobMcGee Jul 21 '11 at 14:33
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There are different kinds of intellectual property, and it's important to understand the differences to answer your question.

a) Trademarks. These are the "names of things". Using a similar name to an existing product, which (in the court's eyes) would "cause confusion to the customer" is not allowed. Thus Coke and Pepsi might ultimately be the same sugared water, but the names are very different. If I started selling sugared water as Pepsie that would infringe on their trademark. On the other hand if I wrote a game for say an iPhone about a boy (Pepe) and called it PepSee that would likely be ok.

By international agreement some "common names" have become "trademarked" to their origin. For example if it doesn't come from Champagne in France, it's not Champagne. (It's "Sparkling wine".) Feta Cheese (Greece), Port (Portugal), Parmesan (Italy) and so on have all successfully established that the origin of the product is key to the name.

b) Copyrights. This affects published creative works like books, music, movies, computer programs, and so on. It is literally the "right to copy" the work. A cook-book for example is copyrighted - you can't just photo-copy and sell it. Whether the recipes in it can be copyrighted individually is probably a question for a lawyer, but I seriously doubt it. You can't re-publish a group of recipes from one source en-masse, but even small changes to a recipe would constitute sufficient change for it to be a "new recipe".

c) Patents. These are for "inventions" - traditionally physical things, although more lately patents have been issued for things like software techniques, and business processes. As far as I'm aware though no patent has ever been issued for a "dish". One thing about patents, they have to be on original work. Therefore if any restaurant has ever made the dish before, that would constitute "prior art". Clearly Italian food is pretty safe.

In the case of GM grain, the product is the grain seed itself - they've patented the gene sequence, but obviously what you do with the grain is completely up to you.

Patents are also expensive to enforce (via the courts) and are usually regional in scope (ie Patents granted in the US don't automatically apply in Europe and so on). Patenting "common" dishes is out of the question - I suspect it would be a very expensive exercise to patent even a new dish now - either it's so specific it's trivial to "change sufficiently" or it's so broad that prior art is trivial to demonstrate.

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Recipes (and product names) are more covered under trademark laws than patents, though I believe patents are technically possible. Away from your television, patent and trademark laws are really all about damages. If I "duplicate" the recipe for Heinz ketchup and make it for myself and my family, the Heinz company is unlikely to care a whit that I have done so. On the other hand if I steal their recipe and try to sell Hines Catch-up then I am invading their business and effectively stealing from them, and they should be protected by law. If I take the freely published "Tollhouse" recipe and make cookies which I label as such to sell at the church bake-sale, Nestle's is unlikely to care...on the other hand if I use that recipe to mass-manufacture cookies, package them and label the package as "Tollhouse" Nestles will make hay over the name not the recipe.

Effective counter marketing should neutralize any serious attempt to limit access to common names. If someone tries to say you can't serve "Lasagne Bolognese" in your restaurant because they own either the patent or the trademark you can quickly start serving "Lasagne Rassie" instead. The high cost of starting a claim against you and the low cost of you making it 'go away' will protect the public from such silliness.

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Your examples fall under trade mark infringement, not patent or copyright law. They are also quite independent from the recipe used. –  rumtscho Jul 21 '11 at 7:29
    
I managed to reverse Trademark and Copyrights in my mind as I was writing this answer. Of course the point was to say that such things were trademarks and not patent infringements. –  Cos Callis Jul 21 '11 at 13:28
    
A recipe cannot be trademarked, only a name or logo (i.e. the mark). –  Aaronut Jul 21 '11 at 14:53
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Technically, yes, it's possible:

(examples from a blog post by patent attorney Michael Eisenberg; more available from this article)

The thing is, patents can apply to techniques used to make something, so if you can come up with some novel way to make a food product, it might be patentable. It's more likely that you'd be able to patent some sort of machinery used in the production, assuming you weren't just re-purposing and existing machine and putting it to a new use. The import part is the 'novel' (ie, non-obvious to someone skilled in the area) rule.

Now, is it copyrightable? The U.S. Copyright Office explains their stance on copyright of recipes:

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

Only original works of authorship are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work.

Many corporate recipes are protected as trade secrets, but for that protection, you have to take efforts to keep it a secret, or a judge might not rule in your favor.

...

All that being said, the only recipe that I can think of that might've been patentable that wasn't some factory processing type thing is chiffon cake ... which seems obvious today, but my understanding was that no one was able to reproduce it 'til he revealed the recipe.

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