Whoever invents or discovers any new and useful composition of matter may potentially obtain a United States patent. When it comes to food compositions, however, this seemingly broad scope of patentability is judicially tempered.
Novel foods are not patentable unless they demonstrate a “coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function.” In reality, patent applicants find it difficult to satisfy this scientific-sounding rule.
Even if an inventor could hurdle this patenting bar, who would want to eat food whose ingredients coact or cooperate unexpectedly? Food neophobia—a reluctance to ingest novel foods—is characteristic of omnivores, including humans. To ward against automatic rejection of novel food tastes or flavors, successful patentees must marshal abundant marketing prowess.
This post examines why the patent court formulated this food composition rule, how it is being employed by patent examiners and judges, and how savvy brand managers design subliminal retail strategies to counter innate consumer fear of ingesting novel foods. Patentable vegan burgers illustrate how this marketing process works in action.