The grant of patents is controlled by federal statutes and rules. The two basic types of patents of concern for food products are utility patents and design patents. Utility patents protect food products (e.g., formula and functional aspects and methods of making or using food products). Design patents protect the appearance of food products.
Several requirements must be met before a patent will be granted. The invention must be within permitted subject matter, useful, new (not anticipated) and non-obvious. The law also requires a written description of the invention and how to make and use it. Food products are clearly proper subject matter and are useful. We assume for this article that the invention is new. That leaves two statutory hurdles, non-obviousness and description of the invention.