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[boozerker]

What if you shaped a breakfast cereal so that each piece fit the contours of a spoon? For instance, each piece of cereal would be oval, and rounded instead of flat on top or bottom.

Intuitively, the food creation seems unpatentable. But logically, when reviewing the criteria for novel use, it does seem patentable.

So which do you think?

Now, if you say unpatentable, then let's give it one more design feature. Say...in addition, it has a small extension that's hollow underneath so it'd overlap the beginning part of a spoon's ridge. Is this example more patentable, or totally unpatentable?

[doug vagedes]

Even if it were patentable, (design patent or maybe copyright is the proper IP), is there a benefit to this that can be marketed?  I can see as an example, certain shapes like the ones in lucky charms cereal.  This is part of their branding.

[dablueman]

Intuitively, the food creation seems unpatentable.

Why?

[JustAnotherExaminer]

Food related patents tend to be high-media items because of the amount of prior art not readily available to examiners.

http://en.wikipedia.org/wiki/Uncrustables

[MYK]

I'd say that even your first case is patentable.  I can't find it at the moment, but I've seen a utility patent on the shape of a bar of soap.  Inventor's name was Brewer, first name was I believe Al or Alex.  Similar patentability considerations would probably apply to your novel cereal shape.

Found: 4,402,848

[iamddn]

I have patented several food "shapes."  The question is often the utility of a shape versus its commercial distinctiveness. Also, you would be amazed what kind of shapes an Examiner can find in a 160 year old patent. 

I have had better luck patenting particular automated processes for making a food item that results in particular shape, where the shape cannot be easily produced through a different automated process.

[sputnik]

Can we seriously do this?

I could patent the bread or rice shape and charge 1 cent to all people that are using my patent and get rich... If lots of patents like this are approved it would become crazy to make anything without paying 50$ to lots of people... Come to think of it, maybe i should submit few patents as well...

[Wiscagent]

I recently conducted a prior art search for a food product.  The novelty wasn't in the overall shape of the product per se, rather it was for how the parts of the product were arranged.  (Sort of like an Oreo cookie sandwich vs. a frosted cookie.) I identified several on-point references, some dating back to the 19th century.

So yeah, you can patent a food shape or arrangement.

And as for the utility ... that's easy ... you can eat the darn thing!  That's a heck of a lot more useful than many gadgets that are patented.

[JimIvey]

And as for the utility ... that's easy ... you can eat the darn thing!  That's a heck of a lot more useful than many gadgets that are patented.

I think the utility question (as least as I read it) was not a Section 101 question but more a question as to how you characterize the food shape as functional (for a utility patent) rather than ornamental or decorative (for a design patent).

But I think that issue's been addressed in here.

It's interesting to know food shapes have been patented.

As for the uncrustables, I remember that media storm.  If only our greatest pundits understood the distinction between the specification and the claims and the "all elements" rule.  Too much to ask for?

Regards.

[blakesq]

yes we can.  but, the invention must be "new" and "useful".  So, your example is faulty, the "rice" shape cereal cannot be patented because it is not new, rice krispies being the first example that comes to mind.  As for "bread shapes", i  remember seeing "cinnamon toast" cereal back in the 80's or 90's, with the shape of a slice of bread, therefore, a new patent for a  "bread shape" for cereal would not be available.   

Can we seriously do this?

I could patent the bread or rice shape and charge 1 cent to all people that are using my patent and get rich... If lots of patents like this are approved it would become crazy to make anything without paying 50$ to lots of people... Come to think of it, maybe i should submit few patents as well...

[boozerker]

The example (post #2) of Lucky Charms seems like a design patent.

So here's a question: if you invented a food shape that's novel -- although it's an existing shape (as with Lucky Charms marshmallows, or my spoon-shaped cereal) -- do you have to describe how to make it? For example, do you have to provide instructions on building automated factory machines that would create the food product and shape? Do you have to provide cooking instructions?

I've seen examples on the Google Patents search database that didn't provide instructions or specifics, just mainly drawings. So am I correct in assuming they were design patents, and don't need instructions on how to cook or mass-produce?



Also thanks for the responses, it's been enlightening.

[Wiscagent]

Here are a few examples of patents for shaped food items.  As someone suggested, they actually claim the method of making the food item.

US 5780082 - Process for making a food product of the pizza type, in the shape of a pocket

Claim 1. A method of manufacturing a pizza pocket, comprising the steps of:
a) preparing a first pizza crust dimensioned and configured to define a bottom portion of a pizza pocket;
b) arranging pizza toppings on a top surface of said first pizza crust;
c) placing said first pizza crust and associated pizza toppings on a hearth in an oven;
d) cooking said first pizza crust and associated pizza toppings in said oven for approximately 60 seconds such that said first pizza crust and associated pizza toppings are cooked to a condition close to completion;
e) removing said first pizza crust and associated pizza toppings from said oven;
f) covering said first pizza crust and associated pizza toppings with a second uncooked pizza crust, thinner than said first pizza crust, to define a top portion of said pizza pocket;
g) joining edges of said first pizza crust and said second pizza crust to form a pizza pocket enclosing said pizza toppings;
h) placing said pizza pocket in said oven; and
i) cooking said pizza pocket in said oven for a time sufficient to cook said pizza pocket to completion.

US 6200620 - Method of using a mold to make heart-shaped cake or bread

Claim 1. A method of making a heart-shaped cake or bread, the method comprising the steps of sequentially;
filling a V-shaped cavity of a mold having a pair of generally planar side walls having joined lower edges and extending upward from the lower edges at an acute angle to each other and a pair of generally triangular end walls crosswise to the side walls with a mass of risable dough;
after some rising of the dough forming a longitudinal cut along a top of the dough mass;
cooking the dough mass with the cut top so the dough rises and forms a pair of longitudinally extending bumps;
demolding the cooked dough mass from the mold; and
slicing the cooked and demolded dough mass into slices each of heart shape.

US 4812323 - Method for preparing a cup-shaped cookie
Claim 1. A method of preparing a concavo-convex shaped cookie, comprising the steps of:
(a) preparing a batter which bakes into a cookie;
(b) preparing a baking enclosure to receive the cookie batter, said enclosure including a baking void space bounded by upper and lower molds having forms characterized by the absence of interior corners and points and having a configuration shaped in a form representing a desired cupped shape;
(c) placing a portion of the batter in the baking void space;
(d) applying a differential cooking environment to the cookie batter comprising a greater quantity of cooking heat at an interior face of the lower mold which is in contact with the batter and a lesser quantity of cooking heat at an interior face of the upper mold which is in contact with the batter;
(e) maintaining the differential cooking environment for sufficient time to substantially cook the batter; and
(f) separating the upper and lower molds to permit removal of the cooked batter.

[BobRoberts]

"I could patent the bread or rice shape and charge 1 cent to all people that are using my patent and get rich."

The material part being "to all people that are using my patent"- You have to be able to sell the invention before you are going to make money (and get rich).  And that is after you've invested $5,000 - $10,000 or more in the patent process without any guarantee that you will end up with a (workable) patent.