Q: can I patent an ingredient in animal feed to prevent other feed companies from using it?
I have researched benefits of specific vegetables and fruits and started using them in animal feed production with great results in animal health and performance. No other feed company includes these ingredients in their feed. Can I patent this to prevent competitors from duplicating my feed / recipe?
Starting in March of 2013, the rules for what could be patented changed. See https://www.law.cornell.edu/uscode/text/35/102
The relevant text is
A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention;
It is believed that the term sale is meant to be a public sale not a sale under a non-disclosure agreement. As this change to the law is new and there have not been many cases tried with respect to patents issued under the revised law, we have a hard time answering all questions with confidence.
The concept of not being able to get a patent after putting an idea into the public domain is linked to the information being accessible to the public. An argument can be made that a trade secret not available to the public that is used in making a product is still a trade secret and thus could possibly be patented later. The process for getting nooks and crannies in a Thomas English Muffin is still considered a trade secret.
If you listed the new ingredient on your containers of food or posted advertising that talked about these ingredients, then it is too late as you have put the suggestion of using these items in animal feed combined with sales of the food into the public domain. If you did not reveal what was in your product beyond something non-specific as natural ingredients, then you may be able to seek a patent. If may hinge on whether it would be discernible to someone what was in the feed (for example they could see watermelon seeds even if you did not list watermelon seeds as an ingredient. --Compare that you used pureed baby portabello mushroom stems and this puree did not leave a discernible indicator in the food)
You will still need to show that it was non-obvious to add this to animal feed. If other studies showed that a chemical that is in this additive is helpful to animals or to humans, then it may be difficult to show that adding this material to a feed for animals had unexpected results. This will require some skills from a patent attorney with a relevant technical background.
I hope this helps.
Kevin E Flynn
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