Can Food Recipes be Patented?

Patents and their benefits

A patent is a legislative right granted by the government to its applicant for a new product or procedure. It’s a matter of territorial rights. This means that a patent awarded in India is only valid within India’s borders. It safeguards intellectual property for a period of 20 years. No one else can manufacture the product or replicate the patented technique at this time. For the use of their product or process, users must pay royalties to the patent holder. The product or technique is made public after 20 years.

Key criteria for a patent on food recipe

ICAR and CSIR are two significant Indian institutions with patented intellectual property in the food sciences sector.

A patent on food recipes can be applied to cookbooks. This might also be considered a work of literature. A patent like this would grant the author ownership of the work after it was published. For our purposes, we’re looking at how to patent a food recipe. This patent would also restrict anyone from copying the formula, rather than only forbidding others from publishing it. Furthermore, it is patented like this that has kept the formula for products like Coca-Cola a secret.

The Indian Patent Act, 1970 was amended in 2005 to give product patent protection for food, chemical, and pharmaceutical inventions. Furthermore, obtaining a patent for a food product can be difficult. There are three important criteria to be met before an idea is considered worthy of a patent:

1. Novelty: The recipe needs to have an element of ‘newness,’ not just an extension of an older method.
2. Non-obviousness: Just mixing raw food materials that produce an obvious result would disqualify a recipe from the patent.
3. Industrial application: For food, this criterion means the recipe should be useful for either humans or animals.

Major Components to Patent a Recipe

Any recipe or food formula, in general, contains two major components. To patent a recipe, the components must fall under one of two categories: composition or texture. The method for preparing the recipe falls into the procedure area.

1. Ingredients: Every recipe is prepared by using different ingredients with definite compositions. You will be capable to patent a recipe formula only when the composition is non-obvious and unique of the present foods.

Example: If you want a patent a recipe of coffee. Then the quantity of sugar, the kind of coffee beans, the proportion and amount of ingredients shall be taken into consideration.

2. Preparation procedure: The process category includes the method of preparing and making food. The process shall include methods like baking, frying, heating, grilling, cutting, soaking, layering, melting and blanching, and many more. 

Example: In the coffee example, after choosing the particular and unique ingredients. The time for grinding the coffee beans, the kind of machine used, the melting methods of sugar operate as the reference.

3. Patented Food Examples: Below are a few of the famous patented food products. They are:    

1. Kellogg’s products 
2. Nestle products 
3. Specific tiffins 
4. Tomato ketchup 
5. Unilever products 
6. Florastor 
7. Certain limited fruits and vegetables 
8. Various probiotics, and more.

Important details to note while applying for a patent on Food Recipe

An innovation, according to the Indian Patent Office, must include an inventive step. Its novelty refers to the fact that it has never been published in India or elsewhere. It should also not be asserted in any Indian specification.

The Indian Patent Office states that an inventive step is one that “makes the invention not obvious to a person skilled in the art.”

An applicant looking to patent a food recipe also needs to ensure that it does not violate Section 3(e) of the Indian Patent Act, 1970. Moreover, the section says that the following cannot be patented:

“a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substances.”

The recipe should not be a “mere admixture of substances resulting in aggregation of properties of the components” according to Section 3(e) of the Indian Patent Law. For instance, merely taking the food items off the shelf and mixing them without doing anything special to the process fails the ‘inventive step’ (non-obviousness) requirement.

This means that a product or process which just mixes ingredients producing an obvious result cannot be patented.

Examples

1. A process for the preparation of deep fat fried potato chips – Patent No. 192889
2. The process of making fried masala banana chips – Patent No. 198069
3. Process for producing baked potato slices with expanded texture – Patent No. 257367 (This one is by Frito Lay!)
4. A process for the preparation of binder formulation useful for the preparation of agglomerated flavored tea – Patent No. 250962
5. An improved process for tea manufacture – Patent No. 250544
6. A chocolate food product or ingredient and the method of making said food product or ingredient – Patent No. 258480 (Now can we all make Hershey’s Chocolate at home?!)
7. A wheat chocolate bar for sustained energy release – Patent No. 229291

Applying for a patent on a food

The Indian Patent Office recommends that people file for a patent in the office where they live. Documents can be filed electronically, via mail, or by hand.

After an applicant applies, the information is made public 18 months later. Others are given a chance to speak out against the publication. After then, a patent is granted or denied based on the results of the inspection. If someone objects to the patent being granted, the Controller makes a decision.

Conclusion and Key Takeaways

Food recipes are definitely patentable in India, though keeping in mind the below:

1. The recipe should not fall within Section 3 (e), which refers to the simple mixing of known substances.
2. The recipe must involve a special feature, an inventive step, for example, achievement of unexpected results such as fat-free, sugarless yet retaining texture and flavor, the addition of certain off-shelf ingredients such as antioxidants, having nutritional/therapeutic value addition over similar known food products and very important new process steps, namely, heating for a particular time in a particular temperature range to get an unexpected result which would not have been obvious for any skilled artisan to achieve in view of the prior art, other defining process steps can be mixing, freezing, fermentation, preservation, aging, grinding, etc.
3. A procedure claim for a new recipe would be more likely to be granted a patent than a composition claim (depending on the composition’s creativity), but the enforceability of the protected IP should also be examined and balanced out.
4. A well-written patent application that intelligently claims the elements.
5. Over and above, if your recipe does not meet the patentability criteria, there are always options such as copyrights available to get a certain level of protection, which although cannot be compared with the degree of protection accorded through a patent. Expression of your original recipe instructions in the form of say a book or any other form of compilation can always be a subject matter of copyright!