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Patenting food ripe with challenges: Kulish

Patenting an idea is one thing, but trying to cook up a patent for food is something else altogether, warns Toronto trademark and copyright lawyer Taras Kulish.

“I was recently asked if I could help patent a veggie yogurt,” says Kulish, a senior associate at Steinberg Title Hope and Israel. 

“And the answer is both yes and no," he tells AdvocateDaily.com.

"While food can be patented it must be new, useful and not obvious while meeting the other disclosure requirements for patentability. In this case, adding spinach or some other vegetable to yogurt really is obvious since it’s a well-established food trend in 2017."

It would have to be something like a novel preparation of a vegetable, Kulish says, like a broccoli snack that kids actually like and will eat and, even then, it could be difficult

"There are so many variations of yogurt by culture  - and excuse the pun - and geography that getting a patent is going to be an uphill struggle," he adds.

So unless you’ve invented a new process for making a unique form of pasta no one has ever thought of, and it's not obvious once 'invented' then a patent is not the route of first choice, he says. But there are other ways to protect a food product's intellectual property.

“I’d suggest branding it as a crucial way to distinguish the food product from that of a competitor," Kulish says. "You’d have to register a trademark but it can be accomplished easily enough done properly.”

While big brands like Coca-Cola and KFC are built on secret recipes, reverse engineering technology can quickly ascertain the undisclosed formula, he notes.

“You have to put the ingredients on the label and science is advanced in this area, so it’s fairly easy to do,” Kulish says.‎ "The keys to distinguishing your new food product and capturing market share are branding, marketing, trademark protection and innovative ad copy protected by copyright."

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