Seriously this was a really good sandwich.
June 21, 2008 8:39 PM   Subscribe

Can I patent a sandwich? I may have just invented the best sandwich ever, and before I reveal the recipe I want to know it's safe from those would attempt to misuse it's power for evil.

Naturally, I would share it, but I want to protect my invention first. There are only two ingredients but pairing them is pretty rare. Turns out it tastes great. Can a sandwich be patented at all? Does it have to be weird enough before I can? Do I have to commercially exploit it in order to patent it? Is the cost prohibitive for whimsical patents? Is the world ready to accept a vegetarian candidate for the king of sandwiches?

I'm not even hungry and I want one now. I might go to the supermarket for more ingredients even though I don't need any other groceries. It's that good. My mouth is watering thinking about it. It's hard to overstate how good this sandwich was, but I like to think it was art

I could be rich from this. People would take out loans for these babies. We're talking devote your whole life to getting them because nothing taste good in comparison, living in the gutter begging for change to go buy one type good.

Naturally, after becoming independently wealthy I would donate profits to charity and allow certain organizations free use of the recipe, you know, pull a Paul Newman, I mean, there's only so much money one guy needs.

It would be kind of cool to have a patent as a conversation piece. I'm in New Zealand so our patent law might be a bit weird. Is there anyone I can call to get (preferably free) advice from?

And where can I order bulk quantities of cough syrup?
posted by Dillonlikescookies to Food & Drink (43 answers total) 25 users marked this as a favorite
No. You cannot copyright or otherwise protect a recipe.
posted by dobbs at 8:45 PM on June 21, 2008

No, you can't. If you could, do you think there'd be, just for example, so many clones of Oreos?
posted by cerebus19 at 8:47 PM on June 21, 2008

Nope. Now tell us what it is! Pleeeease?
posted by AlisonM at 8:49 PM on June 21, 2008

Whoops, just saw you're in NZ. Not sure about copyright law there. Sorry. I must have been too excited about coming so close to the holy grail of sandwiches.

But, tell us anyway? :)
posted by AlisonM at 8:52 PM on June 21, 2008

Best answer: My guess: heart-of-palm and jalapeno jelly.
posted by baphomet at 8:53 PM on June 21, 2008 [1 favorite]

I thought you could copyright recipes, though you cannot patent them. (You can copyright virtually any creative work which is rendered to text.)

Doesn't Nestles own a copyright on the recipe for Tollhouse Cookies that they print on the back of their chocolate chip packages? And I thought they'd sue the tail off anyone they caught printing an exact copy of it.

(Of course, that may simply be an application of the Golden Rule: he who has the gold makes the rules.)
posted by Class Goat at 9:01 PM on June 21, 2008

You could copyright the name of the sandwich if it isn't too generic. By the way, you didn't hear it from me, but if you give a couple of sandwiches to the right people, your competition might just disappear, if you know what I mean.
posted by stavrogin at 9:09 PM on June 21, 2008

My guess: people and cough syrup.
posted by stavrogin at 9:11 PM on June 21, 2008 [2 favorites]

If it is peanut butter and mustard, I already eat it all the time.

I do not think you could protect a recipe.
posted by JohnnyGunn at 9:12 PM on June 21, 2008

You could copyright the name of the sandwich if it isn't too generic

trademark, not copyright.

Copyright protects a fixed expression -- an entire work -- though the limits of this have been somewhat amorphous over the years (eg. computer ROMs).

If drug companies can patent drug formulas I don't see why this guy can't patent a novel sandwich idea. That's what patents are for.
posted by tachikaze at 9:17 PM on June 21, 2008

You can copyright the text of the instructions of a recipe, but you can't copyright the actual ingredients and how they are used in the recipe.

From the US Copyright office:
Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

As for N.Z., I have no idea.
posted by ShooBoo at 9:18 PM on June 21, 2008

Best answer: From the Intellectual Property Office of New Zealand (click on "information library" then "patents" then "beginner's guide" then "introduction to patents")
What are the main requirements for an invention to be patentable?
  • The invention must be new. If the invention has been described in a publication, used, displayed or otherwise made available or commercialised in New Zealand before a patent is applied for, then it will probably not be patentable (see the warning box for details of exceptions).
  • The invention must not be obvious compared to what is already known. The invention must involve doing something more than what would be obvious to someone with a good knowledge and skill in the field of the invention.
  • The invention must be more than just combining two or more known products or processes, which produces no new effect or improved result over what the previously known products or processes achieve individually.
The last two restrictions are almost impossible for a sandwich to meet. Actually, I expect they're interpretted in such a way that makes it impossible for a sandwich to pass.

As I understand it, the above applies pretty much to patents anywhere. But, just as a point of interest, you'd probably want to patent an invention in the country/ies where there's the biggest market for it, not necessarily where the inventor lives.
posted by winston at 9:18 PM on June 21, 2008

Don't know but some of this is copyright.
posted by mss at 9:18 PM on June 21, 2008

Peanut Butter and Mustard? I'll have to try it.

However, I can call prior art on Peanut Butter and Bacon. My mom's family has been doing that for at least 3 generations in the form of a BLT+peanut butter. Delicious.
posted by ArgentCorvid at 9:29 PM on June 21, 2008

Response by poster: Okay. But this isn't just a sandwich. It's a sensory experience. You must follow the recipe to get the total effect.

Firstly, I used Ploughman's Dark Soft Wheat & Rye Bread. It's a local one, but It's fairly dark in colour, has a thin but meaty crust and no bits-of-oat nonsense. It's still quite fluffy for a dark bread, but it has a rough texture especially on the crust which is crucial for the contrast.

I used Oliviani olive spread, you could use margarine or butter, preferably some sort of olive oil based spread though. The dark bread tends to get quite dry and the main theme of the sandwich is the textural contrast, you'll need to be liberal to keep the bread from being too dry and ruining the effect. The olive spread is good because it's fairly neutral in terms of salt but has that subtle flavour to it while being very smooth.

Next you want an avocado. I used a fresh small one, I prefer mine slightly underripe because I prefer the flavour and smooth-but-lumpy texture. You could use more ripened ones but I find that as well as the flavour becoming more earthy the texture aproaches mush and is less pleasing to the palate. I'm pretty generous with my avocado cause I was raised on the stuff, YMMV.

Finally you'll need: Honey mustard. I used masterfoods (again, local to australia/nz) but it shouldn't be an issue. American mustards are totally different to other varieties, for this recipe I suggest you stay away from them, as well as any grainy mustards. Honey mustard should be very smooth, without grains, sweet but also with a sour tang to it - that last part is important.

Apply your honey mustard generously. I used at least a teaspoon for one sandwich. I went up and down, you may find left-to-right suits your sandwich style better. Spread it just a *tiny* bit, still leaving it fairly uneven, the differing amounts of avocado/mustard in each bite really make for quite an interesting eating experience, keeping you guessing as the sandwich progresses.

Next, consume. Begin by breathing in, taking in the delicious and hearty scent of rye from your bread, and bite in, just slowly enough to appreciate the fluffy texture of the loaf before you reach the smooth avocado, and just as you begin to savour the pleasing suppleness you feel the tang of the honey mustard. From then on, you are on your own.

Please, go forth and enjoy. This sandwich is too good to keep to myself.
posted by Dillonlikescookies at 9:31 PM on June 21, 2008 [75 favorites]

I think the answers here have it covered, but... see if you can enter it in a contest and you may get a measure of fame and money! There are many food contests, and some sandwich-specific ones. Good luck.

(If it involves some combination of artichoke hearts, spicy meats, provolone, and mustard on a pressed baguette, please MeMail me with the recipe!)
posted by Fuzzy Skinner at 9:37 PM on June 21, 2008

Best answer: The news is a few years old now, but you might find these articles
on the intellectual property rights of food interesting.
posted by phunniemee at 9:55 PM on June 21, 2008

rbs, you're so close. What you mean is cream cheese and strawberry jam, with a little salt and a good dose of fresh cracked black pepper, on a lightly toasted sesame bagel.
posted by dirtynumbangelboy at 10:03 PM on June 21, 2008 [3 favorites]

Um, so what do us yanks need to buy at the supermarket to avoid the crappy honey mustard? Anyone?
posted by crapmatic at 10:14 PM on June 21, 2008

Response by poster: You can make it yourself from honey and dijon mustard (preferably). Not that I don't like american mustard, it's just out of place in this sandwich. Try to use a pretty standard, neutral honey.
posted by Dillonlikescookies at 10:19 PM on June 21, 2008

Response by poster: FYI American Mustard is a variety of mustard, I'm not just crapping on your countries' condiments.
posted by Dillonlikescookies at 10:22 PM on June 21, 2008

I can call prior art on Peanut Butter and Bacon. My mom's family has been doing that for at least 3 generations

My uncles used to eat pb & bacon sammiches as kids n the 1950s! I found this out when I tried to freak them out with my penchant for sliced oranges and onions on buttery rye toast.

Personally I don't think anyone can come up with a purely original food concoction. Somewhere there is always another human who has had the same whacky gastronomical idea.
posted by zarah at 11:42 PM on June 21, 2008

Living in México, where avocado is good and cheap, I have to say that I have had that combination before (sans that type of bread). Not only once, but many times. As a matter of fact I eat variations of avocado sandwiches *at least* twice a week.
posted by edmz at 12:21 AM on June 22, 2008

Hasn't KFC patented its secret blend of 11 herbs and spices? Is that not a recipe? If so, why can you not patent a sandwich?
posted by Effigy2000 at 1:39 AM on June 22, 2008

Um, Effigy2000—You asked and answered your own question. You can't patent something and keep it a secret. They're mutually exclusive. That's why you often see companies hold off on patenting something, opting instead to stick with the "trade secret" route. Further, how would you know if you were violating someone else's patent if it were kept a secret? It wouldn't be enforceable.

The idea holds that, even though the patent may protect you from others stealing your methodology/product, they could easily derive and use it as inspiration. Most patents are widespread enough in scope to protect against that sort of abuse, but depending on the type of technology or system being patented, small companies are sometimes untrusting enough to keep it a trade secret, at least until things are more established for them.

Not only that, but the patent application process becomes transparent throughout at segments. So a patent pending can reveal a trade secret.

Just like Coca Cola and Pepsi's formulas may be "secret", they're not patented.
posted by disillusioned at 2:05 AM on June 22, 2008

Yes, you can certainly patent recipes. Unfortunately, in most countries, including New Zealand, there is the concept of absolute novelty. If you have told anyone (especially on the internets) your recipe, without a secrecy agreement, then it is in public use and therefore no longer patentable. In the US, even if you are not a US citizen, you have one year from the moment of blab to file your patent application. This gives small inventors, a powerful lobby in the US, time to get financing etc.

Basically, you can patent just about anything which is new and useful. Fosbury probably could have patented his flop, but then it would have had to have been banned from competition until the patent expired. A search of the USPTO database using the term sandwich turns up 69,620 hits, itself making it difficult to establish that any sandwich is in fact "new" (although, admittedly, most of these just use sandwich as a verb and do not describe food). There are actual patents to sandwiches in there though if you refine the search. There was also recently litigation over a crustless sandwich patent.

You won't know whether your recipe is patentable until you contact a patent attorney. All I am saying is that it might be, and that recipes in general are certainly patentable in principle although the requirement for being new is pretty difficult in this area.
posted by caddis at 2:22 AM on June 22, 2008

Response by poster: If there were more MeFi members nearby I would totally host a meet-up and serve nothing else.
posted by Dillonlikescookies at 5:20 AM on June 22, 2008

Of course you can get a patent on a sandwich.
The only conditions are: novelty and non-obviousness.
In some jurisdictions (such as Europe), the subject matter has to be based on a technical problem, but that is just a matter of framing the whole thing in the right way. In the US, you can get a patent for anything under the sun, which includes sandwiches.

"Novelty" means that there is no disclosure of the sandwich anywhere in the world, including the internets, before you file for your patent. Well you just blew that one when you posted your recipe here. Might still get a patent in the US though, the keyword being "grace period".

Also, it seems like your invention boils down to using avocado and mustard in the same sandwich. Sure, this is kinda neat, but I doubt that nobody has thought of that one before.

You could also file a utility model if they have that in NZ (there are no utility models in the US). I think they are called "petty patents" in Australia, so they might also have them in NZ. The difference to a regular patent is that utility models are not examined, so you'll get your patent right away. There's also often a grace period for utility models, so you can still get one even though you just disclosed your "invention" here.

You are not going to make a single dime out of such a patent anyway, so it doesn't matter where you file.
posted by sour cream at 5:38 AM on June 22, 2008

winston: The last two restrictions are almost impossible for a sandwich to meet. Actually, I expect they're interpretted in such a way that makes it impossible for a sandwich to pass.

But the OP told us that nobody would think of pairing the ingredients. This is exactly the condition of "non-obviousness". Of course, we don't know whether the OP is right with his assessment...
posted by sour cream at 5:42 AM on June 22, 2008

A friend of mine swears that the unlikely combination of Marmite and honey works great in sandwiches but so far I've been too disgusted by the thought of it to actually try it for myself.
posted by electricinca at 5:52 AM on June 22, 2008

Dillon - I am happy to see that you changed your mind and open-sourced it. Now you can keep track of the endless variations that others will come up with.

The way to make money from your insight? Open a sandwich shop and serve 'em up.
posted by yclipse at 6:21 AM on June 22, 2008

Response by poster: Yeah. I was just worried that some big corporation would take the chance to make millions, overcharge people, exploit third world honey-mustardeers, and so on. That was why I wanted to patent it, so I could make a tidy couple mil without exploiting anyone as well as bring this sandwich into the mainstream for the benefit of the medium.

Of course, now it's free, take it or leave it. It's probably better off, the investment capital from a patent like this would probably have been prohibitive, I would have ended up signing everything over to venture capitalists anyway.

The utility model thing sounds good but it's just not as cool sounding. "Oh yeah, I have a patent. It's for a sandwich, actually." is infinitely cooler IMO but it may be worth looking into.

Also, I'm glad to hear your opinions and reviews on the sandwich. Feel free to mefi-mail me, I'm open to suggestion for names. Of course, I would like to name it in my honour, humble guy that I am, but my knowledge of marketing suggests something a bit more relatable would be in order.

My only worry is that now there will be no where to go, you know? Maybe I peaked too early, and everything I eat, everything I make from now on just won't live up to this. Ah well, why complain when I've achieved such a fulfilled existence so early on? I feel like I've made a great contribution to the world today.

Thanks everyone, and I look forward to hearing how amazing your sandwiches were. No need to shower me with gifts, marriage proposals, etc. Your enjoyment is thanks enough.
posted by Dillonlikescookies at 6:59 AM on June 22, 2008 [2 favorites]

Well wait a minute Mc Donald's patented the bigmac so obviously it's possible to patent a type of sandwich, even if the recipe is not copyrighted.

Also, Even if you publish your invention, you still have two years to file a U.S. patent.
posted by delmoi at 7:25 AM on June 22, 2008

one year
posted by caddis at 7:34 AM on June 22, 2008

The most famous IP conflict over a recipe (it did not go to court but the business in question charged the recipe user $250) is an urban legend
posted by bad grammar at 7:50 AM on June 22, 2008

Assuming you are releasing the recipe under a creative commons license without the "no-derivs" clause, I suggest the addition of a few, thin slices of Trieste prosciutto: a brined, steamed, lightly smoked ham, usually served fresh out of the steamer (thus almost non-existent outside the region). I'll try the sandwich making all (and I mean, all - well, except the avocado) the ingredients from scratch. I'll let you know.
posted by _dario at 7:57 AM on June 22, 2008

What you really need is to require a special machine to make the sandwich, and then patent the machine.
posted by Caviar at 11:24 AM on June 22, 2008

Best answer: Someone may have unofficially beaten you to the punch. In the US, Brianna's Dijon Honey Mustard Dressing has a picture of an avocado on the front of the bottle, with "great paired with fresh avocadoes" (or something similar) printed underneath. They (and you) are right - it's the food of the gods combination.
posted by media_itoku at 1:23 PM on June 22, 2008 [1 favorite]

Mod note: wisecracks and whatever removed - metatalk or maybe the wiki for your sandwich-related jokes?
posted by jessamyn (staff) at 2:36 PM on June 22, 2008

You sir, have on this day changed the world.

My two roommates and I have just spent the last 3 hours inventing sandwiches. Some will miss, no doubt. But if there is just a fraction of grand in any of these it will have been the Dillonlikescookies we have to thank.

When the sun comes up, we leave for ingredients.
posted by ifthe21stcentury at 4:23 PM on June 22, 2008 [2 favorites]

>>>Hasn't KFC patented its secret blend of 11 herbs and spices? <>
No. If it had, the secret blend would have entered the public domain several decades ago. KFC protects its secret blend of spices (as Coca-Cola protects its formula for Coke) as a trade secret, which has little to do with patent law (and even less to do with copyright law.) A trade secret is just an unpatented (or unpatentable) company secret successfully protected from discovery!
posted by applemeat at 12:11 PM on June 23, 2008

I don't like Avocado. And I'm not sure an Olivani and Mustard sandwich is really for me.

Although I can't help thinking that Subway does Avocado and has Honey Mustard dressing, perhaps you could order it as a Sub.
posted by sycophant at 4:38 PM on June 23, 2008

Ah, one of my favorite sandwiches is avocado, BACON, honey or sweet hot mustard on a multi grain bread like Milton's. You can do a soft fried egg with brown better for that extra artery clogging experience and hey, what about the ementhal swiss or gruyere cheese - I add that too. People have swooned over that sandwich.
posted by jadepearl at 7:46 AM on June 24, 2008 [1 favorite]

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