A chef has just invented a new process for making candy. The process relies upon a chemical reaction that occurs among three specific ingredients and transforms their chemical compositions. Using this process, she has already developed three new sweets that she plans to market. However, she is unsure of the best way to protect her creations.
- What can she protect with a patent or with trade secret law?
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According to 35, U.S.C, 101,
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.
In the scenario that you propose, the new process that the chef applied produced a "composition of matter" in the form of the new candies and sweets. That is patentable. The recipe steps by themselves constitute a "new and useful process" that is also patentable according to this code.
The issue at hand, however, is that 35 U.S.C. adds other conditions to determining whether the recipe is worthy of being patented or not. For example, 101 asks whether the recipe will be "useful". The word useful entails that it satisfies some benefit to the user. Recipes can be useful to many chefs, cooking aficionados, kids, adults, and many others.
35 U.S.C 102, however, puts a condition on whether the invention will be "novel", or whether it was copied from something that had already been proposed before. Once that is established the recipe could be patented upon being proved that the process of creating the candies is unique.
Now, 103 poses the question as to whether the invention is not too obvious. It is a common-sense question that wonders whether a patent should be granted to something that anybody with a small degree of creativity and motivation can do. Therefore, it would be wise to mix substances that are not commonly mixed together in the typical candy kitchens to determine this factor. Hence, to avoid being rejected by a patent official the chef should demonstrate that the mixture is one that nobody else could have come up with. In other words, pop rocks mixed with coke are not patented because a lot of people have used the same idea to make different experiments. It is obvious that two explosive substances will create an explosive reaction. That does not warrant patenting.
Now, trade law protects every invention at a very small cost and with the benefit of legal support. Trades are protected for an unlimited time, and require less evidence of utility, common sense, or creativity like patents do. Patents also last only 20 years and can cost up to 30,000 dollars (a recipe surely would be much less) depending on what is being patented. It is often when a product's life, marketability, likelihood to inspire others, and sales will cause a real difference in the market when a patent should be in place. Think about a recipe book versus the mini Ipad. Which one is more likely to be on the market for a long time, copied by black markets, sold by the millions, and promoted for further sales?
If the chef is serious enough the market value of the recipe and secure enough to prove beyond doubt that the recipe is unique (such as, the coca-cola recipe, for instance) there is no doubt that a patent could work. Other than that, trademark law can also protect the product but since it is trademark, the chef should advertise it in an equally unique fashion as the product is in itself unique. That would protect the chef just as strongly as a patent for less money and for a longer period of time.
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