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[Felafelzzz]

This may sound silly but I have this idea for an ice cream flavor from a desert recipe. It is based off a desert but noone has actually made it into an ice cream flavor. Its like taking devil's food cake and turning it into a flavor of ice cream i suppose( but with a diff desert) I guess I just want to patent it abd sell it to a big company and just get royalties or somethiblng along those lines. Is that possible and would you have an idea how much the expenses are for it? Thank you for your feedback

[SoCalProductDev]

That sounds like a long-shot to me.  How would you write an enabling patent application?  I don't think you can write "I claim ice cream that tastes like X." and get it past the examiner.  Although, maybe you could write a product by process claim.  However, the competition could go ahead and make a competitive flavor by mixing whatever magic flavor chemicals they use in our food these days and hit the market right alongside you.

[Felafelzzz]

How does a product by process claim work?

[SoCalProductDev]

How does a product by process claim work?

You plan to market a bucket of frozen, cold, and delicious ice cream.  In development, it is codenamed flavor 2173.05(p) and you wish to draft a particular claim of this delicious and flavorful composition of matter.  You may consider reading the MPEP description of claims directed to product by process.



2173.05(p) Claim Directed to Product-By- Process or Product and Process [R-5]

There are many situations where claims are permissively drafted to include a reference to more than one statutory class of invention.

I.    PRODUCT-BY-PROCESS

A product-by-process claim, which is a product claim that defines the claimed product in terms of the process by which it is made, is proper. In re Luck, 476 F.2d 650, 177 USPQ 523 (CCPA 1973); In re Pilkington, 411 F.2d 1345, 162 USPQ 145 (CCPA 1969); In re Steppan, 394 F.2d 1013, 156 USPQ 143 (CCPA 1967). A claim to a device, apparatus, manufacture, or composition of matter may contain a reference to the process in which it is intended to be used without being objectionable under 35 U.S.C. 112, second paragraph, so long as it is clear that the claim is directed to the product and not the process.

An applicant may present claims of varying scope even if it is necessary to describe the claimed product in product-by-process terms. Ex parte Pantzer, 176 USPQ 141 (Bd. App. 1972).

[Isaac]

How does a product by process claim work?

I think the short answer is that they work poorly due to recent changes in the law.  I believe it is best to avoid those claims if you can possibly write a straight product or composition claims if at all possible.

[khazzah]

How does a product by process claim work?

I think the short answer is that they work poorly due to recent changes in the law.  I believe it is best to avoid those claims if you can possibly write a straight product or composition claims if at all possible.

OP's post suggests that he's an amateur rather than a professional, so "product by process" and "composition" may not mean much to him.

I think we're saying that you can claim:

a) the ingredients and ratios of the ice cream itself (product/composition claim)
b) the manufacturing process of producing the ice cream which would include those ingredients and ratios

We're also saying that a) is preferred to b).

[smgsmc]

How does a product by process claim work?

I think the short answer is that they work poorly due to recent changes in the law.  I believe it is best to avoid those claims if you can possibly write a straight product or composition claims if at all possible.

Hi Isaac.  What changes are you referring to? Thanks.

[trw]

Food compositions, including new ice cream compositions, are in theory patentable, but it's tricky.  If you claim it as a recipe for a food product, then you're going to run into this:

"It is a matter of common knowledge that new recipes for cooking and for the production of food products are constantly being developed by adding or eliminating well known ingredients or treating them in ways differing from former practice.  To hold all these patentable would unsettle the arts of cooking and of preparing food products.  It surely was not contemplated that they should come within the purview of the patent laws . . . ."  In re White, 5 USPQ 267 (CCPA 1930).

If you intend to pursue a patent, then you really need to focus on the technical features of your invention that are beyond culinary improvisation.