Animal-Related IP Law

Wake Up & Smell the Innovation:  Breakfast food, pets and patentability

By Elaine M. Ramesh In , Posted 

        We Americans are known for spending liberally on our pets.  According to the American Pet Products Association, approximately $30 billion dollars was spent on pet food in 2017.  The pet food industry continues to expand in the United States; and offers opportunities for entrepreneurs to create new products such as pet treats and pet food. But can a start-up get intellectual property protection for a new edible product for the pet market?

         The short answer to this question is yes, as long as the entrepreneur is smart about the type of protection for the product.   It may be very difficult to obtain a utility patent for the “recipe” of the food or treat, because most ingredients and combinations are already known; or would be considered obvious.  But that doesn’t mean that you can’t patent your pet treat.  It is possible that you can obtain either a utility patent on the process for making that “recipe”; or a design patent on the non-functional features of the food or treat.  Read on to learn how even simple breakfast foods like waffles have served as inspiration for patentable pet treat inventions.

Utility Patents for Methods of Making Pet Treats/Food

        Utility patent protection is possible for your pet treat!  Hard to believe?  Then check out these examples of recently issued utility patents protecting the methods for making pet food or pet treats: U.S. Patent No. 9,339,052 claiming a process for making a semi-moist dog food and U.S. Patent No. 9,635,836 claiming a method of making pet treats from unprocessed.  There are also pending applications such as U.S. Patent Publication No. 2017/0181448 describing a method of making a pet treat by coating a rawhide chew stick with a plant mixture giving the appearance of a grilled shish kabob; U.S. Patent Publication No. 2016/0366910 disclosing a method of making a dog treat by cooking dog treat waffle batter in a waffle iron; and a dairy based chew made by combining dairy based ingredients to create a hardened or semi-hardened form in U.S. Patent Publication No. 2017/0273336.

         However, a utility patent is fairly expensive to obtain; may take a number of years to be granted; and will undergo rigorous examination.    The US PTO fees just to take the first step of filing a patent application can be in the range of $500 - $2,000.   This doesn’t include the costs for an attorney to prepare and file the application; or costs and fees to get a patent; or pay the required maintenance fees to keep it alive after it is granted.  It is possible to apply for a patent on your own without an attorney’s assistance (pro se), but having a patent attorney handle the application will be more efficient.   The US PTO does have an Inventors Assistance Center Helpline (1-800-PTO-9199) that you can call if you need help filling out forms and submitting paperwork if you prefer to do it yourself. 

Design Patents for Pet Treats/Food 

         A less expensive and quicker route to patent protection may be to consider filing a design patent application to protect the look of your pet food or pet treat.   A design patent application costs less to file; and doesn’t require payment of maintenance fees to keep it alive once granted.  This type of patent has as shorter exclusivity period than a utility patent.   It can be used to protect the non-functional design of the product.  For more information on design patents for pet products; see the previous blog post on this site entitled “Something to Chew On”.  Some recent examples of design patents for pet products include:  D810,391 for the shape of an edible pet treat; D805,726 for the shape of pet food; D673,002 for a fire hydrant shaped dog biscuit baking tray and D648,594 for a dog treat waffle iron.   These examples show that there could be a protectable aspect to the shape of your product; and that the shape of the mold to make your product could be protected.

         Exclusivity for your pet treat or pet food is possible when based on how it is made (utility patent) or what it looks like (design patent).  It is just a matter of being creative in your approach to identify a patentable aspect of your product.   Flener IP Law’s registered patent attorneys are here to assist you with strategic protection of your new product.