Is there copy protection for recipes?

Do patents, or anything like them, apply to recipes?

If one restaurant starts using a recipe identical to that used by another restaurant, can the second one sue the first or anything like that?

If I figured out Coca Cola’s exact recipe and started selling a drink identical to Coke, would Coke Enterprises (whatever it’s called! :p) have a legal case against me?

-FrL-

The interesting think about Coke’s recipes (and KFC’s secret blend of herbs and spices) are that they’re not protected by patent because that would mean they would have to be public and their legal protection would eventually expire. Instead, they’re protected by trade secrets. Basically, all the protection is up to the company and their using non-disclosure agreements with the (very few) employees who have access to the recipes.

This also means that if a competitor stumbles upon the recipe, they’re free to use it. I doubt they’d be able to market it as a “Coke clone” because that would likely infringe upon Coke’s trademarks, but the recipe itself is up for grabs. As for recipes that aren’t as closely guarded as trade secrets, I’m not sure if they’re copyrighted or what…

Well, a list of ingredients in a recipe is not subject to copyright protection, but a description of how to put them together, if it contains “substantial literary expression,” is. Cite

This page has more on copyright, as well as some info on recipes and patents.

Not sure what all that means for your question about Coke, though. I’m not an expert on patents, but i wonder whether seeking a patent on something like Coke would require the makers to disclose most or all of the recipe, under the Adequate Description requirement? This would, obviously, sort of negate the whole “secret recipe” value of the product.

Actually, as long as the owner of the trade secret makes reasonable efforts to protect it, there are legal remedies against those who get their hands on it illegitimately. http://nsi.org/Library/Espionage/usta.htm

Actually, patent law is pretty much the only intellectual property regime that protects against this sort of thing. This guy says it might be possible to patent a food recipe, but probably wouldn’t be worth it. The Law of Recipes: Are Recipes Patentable? - IPWatchdog.com | Patents & Patent Law (same link posted by mhendo)

Here’s a story about one guy who’s trying the patent way: New Era of the Recipe Burglar | Food & Wine

Fair enough, but if someone determined the recipe legally then they could profit from it to their heart’s content.

That’s right. And it’s different from copying a song. You can’t try to duplicate a song by listening to it–but you can duplicate a recipe by tasting it. :smiley:

In a word, no.

Cookbooks, like dictionaries are almost always based on the purest form of flattery.

It’s happened. The recipes weren’t the entire reason for the lawsuit, but they were a significant part.

ETA: Link with some more info.

That’s an interesting story. Years ago, I reviewed a similar (but much weaker) case for a potential client.

From the stories, it appears that the case is different from what the OP is talking about:

http://ballardnewstribune.com/articles/2008/10/28/news/local_news/news03.txt

The guy wasn’t complaining that the other restaraunt stole his recipes–he was complaining about how they were described on the menu. Or, well, mostly:

http://www.seattleweekly.com/2008-09-10/news/peso-s-to-matador-you-stole-my-concept (Emphasis added.)

But even so, he’s talking here not about independent creation of the recipes (as the OP describes) but instead theft of the actual recipes by a former employee.

I’ve no idea what happened in this case. I’m not even sure they actually had what they said they had, but I remember the hubub in the media about it.

http://www.telegraph.co.uk/news/worldnews/1320598/Email-from-America.html (KFC says recipe not the same)

Of course they would say that. :wink:

Actually, I find it incredibly unlikely that the colonel would leave the recipe lying around in the drawer of an old cabinet that he sold. It’s too much like a Seinfeld episode. Much more likely that somebody attempting to get web traffic found the owners and told them their own recipe or something like that. Possibly they even created the recipe themselves.

I think the point of copyright is the ability to stop somebody else from reproducing the recipe as a recipe. For example, if you copyright a recipe, somebody else wouldn’t be able to copy it verbatim into their cookbook without your permission. Using the recipe to prepare food wouldn’t involve copyright law.

Patent law is different. You get a patent by exchanging sufficiently thorough teaching such that other people can practice your invention by following those teachings, and in exchange you get a 20 year right to enforce a coercive monopoly on the use of the teachings. Of course, trade secrets are about as opposite to this as you can get.

More particularly, you can and people do patent recipes. However, such a patent, called a “process patent” because what is being patented is the way a product is made, is inherently difficult to enforce. The other kind of patent, a “product patent”, covers what the product is. If you find that tires containing pulverized eggshells work much better than all other tires, you can patent eggshell-containing tires witha product patent, and when a competitor sells them, you buy one and show it has eggshell in it, and you win your infringement case. If you had, on the other hand, discovered that manufacturing tires while people who had garlic for lunch are staffing the assembly line makes better tires, and got yourself a process patent for this, you can’t prove a competitor is doing it. His shop is off limits to you, and the tires coming out of it don’t tell you why they are better.

So, patenting a product can work, but it is much harder to patent how a product is manufactured, because you can’t prove the infringement without access to your competitor’s shop.

From a link up the page:

So, they could in fact copy the ingredients list and quantities and basic directions without infringing on copyright. At least, according to Gene Quinn of IPWatchdog.com. I have no idea if his opinions are valid.

From the US Government site

All patentability inventions must meet the folowing criteria - It must be useful, novel and non-obvious.

This would rule out things like “rum and coke”
If you look for food patents you find this:

Composition of matter: You must be able to combine the ingredents in a unique, useful, and non-obvious way.
Process for making the product: This would be the exact way or recipe. Again it would have to be unique, useful and non-obvious.

Also remember patents expire so you may THINK you have a new way but it’s been done before and that patent is no expired. So thus you can get it again

Seems like most of the recipe patents involve things like reduce calories, replacing things (eggs for oil) or new cooking methods like microwaves versus an oven.

So you CAN patent recipes, it’s been done before

To elaborate on patenting recipes: You can sometimes patent a particular combination of things that are already known, and perhaps even already patented in that same combination. The deciding point would be whether the particular combination you teach would give a surprising result.

A critical patent case on this question concerned batteries. A prior art patent described a kind of battery with a certain electrolite, and said the anode could be any of the materials in List A, and the cathode could be any of the materials in List B. Another inventor came along later saying that this prior art battery, if made with Item 9 from List A plus Item 2 from List B, worked much better than any of the other possible combinations, and that no prior art teachings had uncovered this wonderful combination. The patent was allowed.