Michelle Mao is a 2L JD Candidate at Osgoode Hall Law School and an IPilogue Writer.
The distinct smell of brown sugar and cinnamon wafting out of your grandma’s kitchen every time you visit is unique and unmistakable to you. You claim that it is “one-of-a-kind” and it invigorates you to power through until your next visit to grandma’s house. These features of grandma’s cookies give you a bright idea – what if you patent grandma’s cookies? After all, grandma is a sweet old lady who deserves to live a lavish life in retirement and could use the extra money.
According to the Canadian Intellectual Property Office (CIPO), patents must meet three criteria: (1) new – first in the world, (2) useful – functional and operative, and (3) inventive – showing ingenuity and non-obvious. To you, the cookies are unique (potentially filling the novel requirement), they serve a functional purpose – of filling you with motivation (useful), and no one has figured out how to replicate her secret recipe (non-obvious). So, what are the chances of patenting grandma’s secret recipe?
Theoretically, it is possible for recipes to be patented if they meet the above criteria, qualifying under the Canadian Patent Act as a “composition”. However, recipes have historically faced great difficulty receiving patents, often failing at the non-obvious or novel stage. Patents for recipes that fail at the non-obvious stage are typically recipes with a simple composition, making them easily decipherable. Patents for recipes that fail at the novel stage are typically those for a commonly made dish, where simple adjustments to the proportion or ingredient amounts are not patentable. The unpatentability of these factors is based on practicality, where someone cooking a cultural recipe or using more seasoning is not suddenly and unknowingly infringing on a newly claimed patent.
Perhaps a suggestion for Grandma could be to patent her unique process of creating such life-changing cookies, whether it is the process of dough-making or cookie-baking. As technology continues to develop, the incorporation of novel techniques such as dehydration of ingredients, nitrogen cooling, and others, this new way of patenting cooking processes may develop. It will be interesting to see how new processes and techniques that change food longevity, cook times, food’s structural integrity, etc. could change the historical patent success rate of recipes. Unfortunately, for now, your grandma can only protect her secret recipes locked away in a box, rather than through patent protection.