To Patent or Not to Patent

HowardVic · Nov 3, 2011

After over a year of paperwork, I am still at it with local "state" (U.S. territory) officials in my attempts to acquire all the permits & licenses for the creation of my cottage industry meadery.

I was struck stiff in a chair as a local "state" official says, "Nothing to worry about. It's strictly confidential," & hands me a document in which I have to reveal (1) the ingredients in my mead, (2) percentage of ingredients & (3) fermenting process.

The ATF/TTB officials and the local health officials didn't ask for my formula. For what possible reason would the local "state" IRS want my mead formula? Why should my formula be in a file cabinet outside my meadery susceptible to commercial espionage?

I called the U.S. Office of Patent & Copyright , explained my dilemma & about a week later I got via air mail a large manilla envelope full of forms & booklets.

Does anyone know if commercial meaderies stateside are obligated by state and municipal governments to disclose their mead formulas?

Should I put my local permit/license paperwork on hold until I get a receipt from the U.S. Office of Patent & Copyright to show the locals that the patent is is process?

In conclusion: Should I patent or not?

Thanks for your feedback everybuddy...

Guinlilly · Nov 3, 2011

The TTB does require formula disclosure and approval, see details here: http://www.ttb.gov/formulation/pre_cola.shtml

JSquared · Nov 3, 2011

Guinlilly said:
The TTB does require formula disclosure and approval, see details here: http://www.ttb.gov/formulation/pre_cola.shtml

Aww ya beat me to it. Guess I need to drink my morning coffee faster...:coffee2:

But yes the feds do require disclosure. The time and cost of going through the patent process, I would think, would be a waste.

HowardVic · Nov 3, 2011

Thanks for the prompt reply Guinlily & JSquared.

Odd thing is that the TTB agent that came to inspect the premises & interview me did not ask for a written formula revealing the exact amount of ingredients but the local "state" tax people did. Just seems odd that since the purpose of a gov't tax agency is to make sure the state receives its revenues, then, it shouldn't have any incumbency in the formula which would be more appropriate in the heatlh department's realm of influence.

It just doesn't make sense. Maybe, I should contact a commercial meadery and ask them if they had to reveal their formula.

Again, thanks.

akueck · Nov 3, 2011

Have you gone through the Feds for label approval yet? I got the impression that the recipe disclosure was tied to the label, e.g. "Orange Blossom Mead" = 30% honey, 70% water, yeast or "Blackberry Honey Wine" = 20% honey, 25% blackberries, 55% water, etc. I talked to Jason at Fox Hill about it when I was there and he said he was suitably vague about the honey--he just called it honey. That way you can 1) hide your varietals if you want and 2) change the blend year to year without having to go through re-approval. Similarly, just say "yeast" and you're covered, they don't have to know that you use a particular strain. The government is just box-checking; we want our food to be "safe", right?

[The FDA gets involved, that's why they ask for ingredients. Soon they might make you put it on the label like most other food products.]

As far as the intellectual property concern, I wouldn't really be worried. It's not like someone at the regulation office (or whoever might have access to your documents, not sure if they are public) is going to say "O my, he mixed honey and water in that particular ratio!" and then steal all your customers. Several commercial meaderies post their recipes here. Some breweries list the recipe on the bottle. The shopping list for mead isn't really a secret to begin with.

wayneb · Nov 3, 2011

As part of a Commonwealth affiliated with the US, rather than an actual state of the union, the rules are different for you guys. I would not be surprised if the local tax representatives are responsible for more of the "administrative details" regarding licensing in PR than in the rest of the country.

Midnight Sun · Nov 3, 2011

Granted, while you have to reveal a formula, I do not believe the you must reveal the true formula. I think that akueck's advice is right on.

What this means to me is that you should consult a lawyer that specializes in patent law. For the time and effort that you are going through to get this patented, you might as well do it right. I'll be that you only need an hour or two. $200-300, maybe? That is a small price to pay, at least in my opinion.

Medsen Fey · Nov 3, 2011

Who needs to patent a mead recipe? It isn't like someone would be able to duplicate your mead. The variability in honey would be a factor. Then the microflora in your meadery will differ from that in other locations and then the fermentation temp, and fermenter size (and shape), and fining, aging, etc. will make your batch unique to your meadery. In fact, one of your challenges as a commercial operation will be to try to produce some consistency in your product - you're likely to find that it isn't so easy. Unless somebody comes in and ferments in your meadery they aren't going to produce your results, so a patent is essentially superfluous.

PitBull · Nov 4, 2011

Just my 2 cents.

I don't believe you can patent a recipe. A recipe is not an invention, it's considered to be a "trade secret". That's why Coke and KFC gaurd their recipes so closely. A "list of ingredients" is far different than a actual recipe.

Of course I'm hardly an expert, I've had only a few business law courses.

cayo hueso · Nov 4, 2011

PitBull said:
I don't believe you can patent a recipe. A recipe is not an invention, it's considered to be a "trade secret". That's why Coke and KFC gaurd their recipes so closely. A "list of ingredients" is far different than a actual recipe.

Of course I'm hardly an expert, I've had only a few business law courses.

Thats true, but a recipe is considered "intellectual property". Therefore it is entitled to protection if the owner wishes it. I found an interesting article on the different types of intellectual property rights a person has here.

This is the most pertinent section IMO.

"The original formula for making Coca-Cola was patented in 1893. But when the formula changed, the company did not choose to patent the formula again. The reason for this is simple: if Coca-Cola were to patent its formula, the formula would become known to others, and once the patent expired, anyone could use it. It is possible to copyright a formula, but that would also make it known to the public. And in any case, copyright would only protect the formula as a piece of literary expression; it would not protect the basic ideas that make the formula unique. By keeping the formula a secret, Coca-Cola can protect the formula and keep it to itself indefinitely.
However, the downside of a trade secret is that once it is out, there is almost no legal protection; if the Coca-Cola formula were to be revealed, Coca-Cola could not stop other companies from using it, the way they could use the courts to stop other companies from using a patented method or its trade-marks. It is up to Coca-Cola, then, to keep the secret from getting out, which they do through confidentiality agreements and other contracts. If you work for the Coca-Cola company, and in the unlikely event that you are one of the select few people trusted with the formula for Coca-Cola, your contract will require you not to tell anyone outside that select circle about the formula."

wayneb · Nov 4, 2011

You can, in fact, patent a recipe, as long as it is specified within a context that can be considered "non-obvious" to a current practitioner of the art. Here's one example of a patent for a soft breadstick recipe (first one that I found doing a quick search of the USPTO database - I wasn't looking for breadsticks specifically).

Here is a link to the patent.

akueck · Nov 5, 2011

The example of CocaCola is not really relevant to mead. Mead is much more than a list of ingredients; the fermentation process is highly (entirely?) dependent on the exact circumstances of your particular equipment. You could duplicate Coke if given the recipe because it's just a bunch of spices mixed with sugar water. So yes, if you give out your recipe (in excruciating detail, which is not necessarily required) then people will be able to duplicate your initial must. But not your mead. As Medsen said, even you will have a hard time duplicating your own mead.

cayo hueso · Nov 5, 2011

The point was not that it would be difficult to duplicate, but that it was considered "intellectual property" and therefore he had rights over his recipe and process.

chams · Nov 6, 2011

Another point is that acquiring a patent requires that you protect it.
i.e. you have to challenge co-opters in court to maintain it.

AToE · Nov 6, 2011

If you're really in doubt, just do what we in the music business call "poor person's copyrighting" - write it down in full, as specifically as you can and then mail it to youself.

Never open it, you'll have a sealed document date-stamped by the government.

HowardVic · Nov 22, 2011

Thank you all for your feedback.

I am resubmitting my label approval application to the feds in Washington, D.C., surprisingly, they informed me that I had to submit the formula for my mead along with the label approval application. Must have been a lapse of memory on part of the local ATF/TTB because they never mentioned it.

I also contacted a family run meadery in California and asked them if they patented their different meads and they replied that they did not.

Anyhoo, I am already working on a different formula for the future.

Again, thanks for your time and consideration in answering my question.

Originally, this was to be a family business, it still is, but Dad died last December 24th and I poured a bottle of our mead on his grave on December 26th during the burial. I am totally ired with the oxymoron: Government Efficiency. I have been after the local island authorities for a month to send me the form to register my fermentation tank. One would think all they have to do is go to the supply room, find the form and mail it me. What a trip. Unreal.

Oh, well, we're getting there.

Lawpaw · Dec 22, 2011

I suggest not patenting.

Patent applications are public documents and patent protection only lasts 20 years. You run the risk of people using your application to duplicate your mead now (illegally, but how will you stop them) and then legally copying in 20 years.

You may also have a hard time demonstrating that your recipe or methodology is truly novel. The last thing you want to do is to disclose your recipe publicly through a patent application, then have the patent denied leaving the recipe out there free for everyone to use.

Keep the recipe close and pray that the state officials do the same.

Disclosure: this isn't legal advice.

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