If you’ve just created a new drink that tastes different than anything that’s out there, you may be wondering whether you can protect your intellectual property (IP) by patenting the formula for your beverage. The United States Patent and Trademark Office (USPTO) allows inventors to protect their IP by granting them patents.
Patents allow inventors to restrict others from making, using, selling, or offering to sell the patented invention for a limited period of time of 20 years from the date you file your utility patent application with the patent office. So, can you protect your beverage formula by patenting it?
Can You Patent a Beverage Formula?
The short answer is yes, you can patent a beverage in the United States by filing a utility patent application with the patent office and satisfying the requirements for a utility patent.
So, you might be wondering, what are the requirements to patent your beverage? To patent your beverage formula, you will need to show that your beverage formula qualifies as patentable subject matter, your beverage formula is novel (new), it’s nonobvious, and it’s useful.
Two of the biggest hurdles anyone who wants to patent a beverage formula will face is establishing that the formula is new and that it’s nonobvious. If you have modified an existing beverage by adding an extra ingredient or two, it’s unlikely that the patent office would consider the drink to be new or nonobvious because of the ordinary person standard.
Under the ordinary person standard, you will have to show that an ordinary person skilled in the beverage industry would have not found your formula to be obvious at the time of filing your patent application. Typically, adding a new ingredient is not sufficient to support a finding of nonobviousness.
What Should You Do Before Patenting Your Beverage?
Before patenting your beverage, you should perform a search of the USPTO patent database to see if anyone else has patented a beverage that the same as or similar to the one you’re seeking to patent. If the search turns up results that are similar, write them down and explain why your formula is different. If the search doesn’t turn up any results, the chances of patenting your beverage are better.
Note: You can’t patent something that is considered to be prior art. Prior art means everything that has been publicly disclosed and patent at the patent office. For you, this means that you cannot patent a beverage formula if someone before has already posted it online because it falls under prior art, which cannot be patented.
After determining that no one else has patented the beverage formula you’re seeking to patent, you’ll know that your chances of patenting your beverage formula are better than if your search turned up something similar. After conducting your research, if things look good, you can move on to preparing a patent application for your beverage formula.
Preparing and Filing a Patent Application for Your Beverage Formula
Now that you’ve conducted a patent search, you can either prepare a utility patent application for your beverage on your own or you can hire an attorney to help you with its preparation.
Although the patent office actually offers help to inventors who want to prepare their own patent application, they recommend hiring an attorney to assist inventors because many inventors don’t have experience preparing their own patent application. For newbies the process is complex and long, so seeking the help of an attorney is recommended for these reasons.
When preparing the patent application for your beverage formula you will have to satisfy the requirements set forth by the patent office. These requirements include showing the following:
- Your beverage formula contains patentable subject matter,
- Your beverage formula is novel (new),
- Your beverage formula is nonobvious, and
- Your beverage formula is useful
Your Beverage Formula Must Contain Patentable Subject Matter
To patent your beverage formula or any invention, the patent office requires it to have patentable subject matter. Said differently, your beverage formula must be an invention for which the patent office offers patents. Here, you’re mixing substances and then using a process to create the final result, which is a beverage. So, a beverage formula will probably satisfy this requirement. That said, you’re not done yet, you still have to satisfy the following three requirements.
Your Beverage Formula Must be Novel
The novelty requirement requires your beverage formula to be novel (new), this basically means that the formula for your beverage must have never existed before. Applying this reasoning to the formula of your beverage becomes a little more complicated and you might be wondering, do the ingredients have to be new? or does the combination of ingredients used to make the final product have to be new?
The combination (formula) has to be new. You can use ingredients that others have used in beverages but you have to add new ingredients to make something that’s totally new. For example, if you’re simply adding more carbonation or more sugar to a drink to make it taste better, it’s unlikely that the patent office will let you patent it.
Having said that, if your formula is new, meaning that it’s different from anything that’s published online or anywhere and has not been patented, your beverage may qualify for a utility patent.
Your Beverage Formula Must be Nonobvious
To protect your beverage with a utility patent, an applicant will have to show that the beverage was nonobvious. Said differently, an applicant will have to show the beverage formula was not obvious at the time of filing the utility patent application.
When the patent office looks into the nonobviousness of your beverage formula, they will look at it from the point of view of the ordinary observer. This means that they will judge its obviousness by asking whether an ordinary person skilled in the beverage industry would have seen the beverage formula as being obvious at the time the applicant files his utility patent application with the patent office. This is a subjective inquiry that the patent examiner has to make.
If the patent examiner determines that the ordinary person would have determined that your beverage formula is obvious, the patent examiner will reject your patent application and keep it from going forward. Adding an ingredient, such as more sugar or adding strawberry flavoring to a drink is unlikely to make it qualify for a patent because an ordinary person may have thought about doing that.
The obviousness requirement is the biggest hurdle that an applicant applying to protect his beverage formula will face. To patent your beverage formula, it has to contain something new, something no one else has thought about adding to a drink.
Your drink might qualify for a patent if you add something like a newly developed artificial sweetener that makes your beverage taste way better than anything out there. Such a beverage may qualify for a utility patent.
In short, your beverage or drink has to have something unexpected add it for it to qualify for a patent. The more unexpected the ingredients, the more likely the patent office will grant you a patent because you want your drink formula to be as nonobvious as possible.
Your Beverage Formula Must Be Useful
Most beverage formulas are not challenged on the grounds that they are not useful, but it’s important to note that this is a requirement to obtain a utility patent to protect your formula from being copied.
To show usefulness, an applicant will have to show that the beverage formula provides some identifiable benefit and is capable of being used. If you have a drink that, for example, quenches thirst or provides energy, you’re likely going to easily satisfy the usefulness requirement.
When preparing your utility patent application, you will have to list why your invention (beverage formula) is useful, as well as how your formula can be used. Like we said previously, the patent office rarely rejects patent applications on the ground that the invention is not useful. So, as long as you comply with the requirements to prepare your patent application, this section should not pose any problems.
If you have a new and unique beverage formula that you know you can commercialize, you should contact an experienced patent attorney and chat with them about potentially patenting your formula. The attorney may have some valuable information that will clarify some of the questions you may have. Also, he may advise you as to whether you should proceed with patenting your drink formula.
If the attorney determines that everything looks good, you should consider having him prepare and file your patent application. While the patent office does not require inventors or applicants to be represented by an attorney, they do recommend that you have an attorney assist you in patenting your invention. This is so because obtaining a utility patent is a complex process that requires the assistance of someone experienced in patenting inventions.
That said, if you don’t have the funds to hire a patent attorney but still want a professional to assist you with patenting your beverage formula, you can look into hiring a patent agent. Patents agents are qualified and licensed by the patent office to prepare and file patent applications, as well as deal with and communicate with the patent office on your behalf. Hiring a patent agent increases the chances of the work being done right at a lower price.
The cost to patent a beverage formula could cost anywhere between $5,000 to $10,000. The majority of the cost is having an attorney assist you in preparing and file your utility patent application. The cost that we just mentioned only applies to have an attorney prepare and file your patent application, if the attorney needs to do additional work, such as communicating with the patent office or making amendments to your patent application, he may charge you more for such services.
Sample Cost to Patent Your Beverage:
- Utility patent application filing fee: $75
- Utility patent search fee: $165
- Utility patent examination fee: $190
- Attorney fees: $8,000
Benefits of Patenting Your Beverage Formula
The main benefit of patenting your beverage or drink formula is that you will be granted the right to restrict others from using, making, selling, or offering to sell the patented beverage for a limited period of time (20 years from the filing date of your patent application).
During the 20-year patent term, you can be the only person to make and sell the patented beverage without having to worry about competitors copying your drink.
In the event that someone else copies your beverage formula and sells it, you will be able to stop them from making and selling the beverage by bringing a patent infringement lawsuit against them in federal court. If your lawsuit is successful, the court will order the party that’s infringing upon your patent to stop making and selling the beverage that infringes upon your patent.
Note: If someone infringes upon your patent, the patent office is not responsible for stopping them. It’s up to you, the patent holder, to go out, find anyone who is copying your beverage formula and suing them to seize the activities that infringe upon your patent. Said differently, you have to police your own patent because the patent office isn’t responsible for doing so.
Patenting Your Beverage Formula
Now that you know you can patent your beverage formula, so long as it’s new, unique, and satisfies the requirements set forth by the USPTO. Patenting a beverage is not an easy task, mainly because of the nonobviousness requirements. If you have a drink formula that you want to patent, you should contact an attorney and consult them about how you should proceed with protecting your intellectual property with a patent. If you have any general questions or comments, please feel free to leave them in the comments section below.