C3 Patent and Intellectual Property Law

Jul282009 | Steve O'Donnell

Open Source Chili

When I'm not managing my law office, writing or playing Wii Sports, I like to cook. As a patent attorney and cook, one of the most common questions I get is “can I copyright/trademark/patent my recipes?” The answer is a qualified “no.” but you can protect them as trade secrets.

Copyright protects artistic expression, so it can protect a story or narrative attached to a recipe, but won't give any protection to the recipe itself. There is an argument that cooking is an art so such artistic expression should be copyrighted, but that won't work. A particular dish may be art, delicious art, but its recipe is at least partially useful in that it instructs a reader how to make the dish. In cases where the artistic elements of a piece cannot be separated from the useful elements then the usefulness trumps and copyright will not protect it. Useful items can be protected by patents, but probably not recipes.

Unlike copyrights, patents undergo a ridged examination proceeding and must satisfy a number of requirements. For recipes, the big issues are probably going to be novelty and obviousness. That muffin recipe might be great, it might be the best muffin I've ever tasted, but based on all muffin recipes to have ever existed isn't there some prior art that teaches the same thing? Or maybe two or three other recipes that teach certain aspects of the recipe? It seems to be a very difficult requirement for a recipe to meet. Another requirement that could be a problem is utility, patents will only issue for useful goods. Although the level of usefulness needed is very low, I'm not sure that “delicious” would cover it. On the other hand, some recipes are patentable, such as this one for savory baking chips and this one for treating chest pain with lime juice. Granted, the lime juice patent is not much of a recipe, but it's one of my favorite patents and I wanted to use it. It has expired because the patentee didn't pay a maintenance fee, so if you feel a touch of angina coming on and want to try sucking a lime, go ahead. Let me know how that works out for you.

Trademarks also don't fit the bill. Trademarks identify the source of some goods, even if you printed an entire recipe on a t-shirt and tried called that your trademark, that wouldn't stop someone from taking your recipe and using it. It might stop them from being able to sell their own t-shirts marked with the same recipe, but why anyone would want to do that is beyond me.

What one is left with is trade secrets. As the name implies, trade secrets are secrets. They have served Coca-Cola and KFC quite well over the years. As an aside, I once knew someone that did some engineering work for KFC. He was able to automate 10 of the 11 secret herbs and spices, but the last one was added manually by a guy that would come out with an unmarked brown sack containing the most secret of the secret ingredients. Trade secrets won't help you at all if someone figures out your recipe, just look at how many copycat recipes one can find, so some extraordinary measures are taken to keep these secrets.

So, the bottom line is, if you don't want people to know your recipe, don't tell them.

Now, on to my non-patented, non-trademarked, non-copyrighted chili recipe:

Open Source Chili

from Steve O'Donnell (http://www.3cpatents.com)
time 4 hours
yield 6 servings

ingredients:
3 cans beans
1 t dried thyme
1 t dried oregano
1 t dried coriander
1 t dried red pepper flakes
4 t cumin powder
3 garlic cloves minced
1lb beef chopped
2 beef bouillon cubes
4 slices bacon chopped
1 red pepper chopped
1 onion chopped
4 oz mushrooms chopped
1.5 cup ketchup
1 tomato chopped
3 c water
2 oz corn chips

directions
1. Throw everything into a crockpot and cook on low about 4 hours or until done.
2. I trim the beef, usually a tip steak or something on sale and add it raw to utilize the rendered fat, lean hamburger can also be used, or any other protein you like. The bacon also goes in raw.
3. The corn chips are the “secret.” They disintegrate and add body and flavor. Without them, or masa powder, you get chili-soup instead of chili. I prefer Fritos, because if you buy a bigger bag you can make Frito Pie.

Chile pepper image from Forest and Kim Starr

Comments

Paul Stoltzfus commented on 30-Jul-2009 05:24 PM

Brilliant, off the wall, emotionally connected post. We will try that recipe, forwarding to Marlena. The Cook.

Julie Rickards commented on 31-Jul-2009 11:53 PM

Interesting. Where can I get a t-shirt with your chili pepper recipe on it?

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