Who doesn’t like trying new varieties of food? Coming up with a yummy recipe is the work of a creative mind.
The purpose of developing a recipe can vary. It may be taste, nutrition, fitness, preservation, experimentation, etc.
Many enthusiasts often enquire us how to protect recipes developed by them from theft. If you are here then chances are that you are also looking to secure rights for your recipe.
So, can you patent your recipe in India? Can you patent a food item in India? What else can you do about it?
A recipe and its process can be patented after the amendment of 2005 to the Indian Patents Act. To get a patent, the recipe or the food item has to meet patentability criteria i.e., novelty, non-obviousness, and utility. Further, it needs to avoid section 3 or more specifically section 3(e) of the Indian Patents Act.
Apart from patents, you can protect your recipe or food items through trade-secret and copyright.
However, the protection is limited compared to patents. But it doesn’t mean that the choice of protection is always a patent. We will see about it in the article.
So far, we have seen ways of protecting your recipe and its process but in brief. Let’s expound upon these ways in more detail.
Can You Patent Your Recipe in India?
Under the current laws of the country, you can patent your recipe, more specifically both the dish and its process.
This has become possible after the major amendment of 2005 in the Indian Patent Act. This amendment extended product patents for food, pharma, and chemical inventions.
It was Section 5 of the Indian Patent Act 1970 that prohibited product patents for food, pharma, and chemical inventions. It was entitled “Inventions where only methods or processes of manufacture patentable”.
The good news is that Section 5 was omitted by the amendment of 2005.
It has been observed that most of the claims of food-related patents consist of process and composition claims. Moreover, process claims have more chances of patent grant than composition-based claims.
This should not deter you from pursuing composition claims for your recipe. In this regard, you should keep in mind that only process claims were allowed before 2005.
You may be wondering what is a process claim for a food item. It's the preparation steps that are undertaken while preparing your food item.
The steps of preparing a food item may include heating, frying, freezing, mixing, stirring, grinding, fermenting, baking, brewing, etc. One or more of these steps form the process of preparing the food item.
Let's look at what is a recipe? a recipe is a set of instructions (process) to prepare a food item including a list of ingredients (composition) required.
Now that we have seen the legal basis by which the path of food patents was cleared. You should note that your recipe or food invention will have to meet patentability criteria in order to get a patent.
In other words, your food invention has to be novel, inventive, and useful. In addition to this, it has to navigate through clauses of Section 3 of the Indian Patent Act.
You may be wondering what are these technical terms. How can I know whether my recipe or food item fulfills these criteria laid down by the law of the land?
Let’s see these 5 criteria one by one from the perspective of food items or recipes. These criteria also describe the steps of how to patent your recipe/ food invention.
1. Your food invention should be Novel
According to Section 2(1)(j) of the Indian Patent Act, invention means (1) a new product or process (2) involving an inventive step, and (3) capable of industrial application”.
If you have come up with a process or food composition, make sure it’s new or novel. If nobody has done it before, It passes novelty test.
Since the basis of applying for a patent is that you have developed a new recipe, this criteria should be easy to meet.
2. Your Food Invention Should be Inventive
This step of the patentability test is a bit tough. We can look at Section 2(1)(ja) of the Indian Patent Act which defines inventive step.
Accroding to Section 2(1)(ja), “inventive step” means a feature of an invention that involves:
- technical advance as compared to the existing knowledge or
- having economic significance or both and
- that makes the invention not obvious to a person skilled in the art.
Let’s further break down these points with examples for simplicity.
1. What does technical advance mean when it comes to a recipe?
To judge technical advance, existing technology or art is used for comparison. In simple words, if there is any technical advantage of your product over existing products in the same class then your product meets the criteria of being technically advanced.
For example, if you have come up with sugar-free cookies which are sweet & highly nutritious and no existing cookie provides such features then there is a technical advance.
Similarly, if you have come up with a capsule or food item that can stay preserved at normal temperature for a longer time or if you have come up with a food that helps in situations of low oxygen then your invention stands a chance of meeting this criterion.
Other examples of technical advantages that your food can have are being fat-free, sugar-free, cholesterol-free, highly nutritious and therapeutic, etc.
2. What does it mean to have economic significance for a recipe?
If there is any economic advantage of your product over existing products in the same class then your product meets the criteria of having economic significance.
For example, if you have come up with a recipe that prepares nutritional juice which is much cheaper than existing nutritional juice then your recipe is having economic significance.
3. What does ‘not obvious to the person skilled in the art‘ mean for a recipe?
After meeting the requirements of being technically advanced and/or having economic significance, the next mandatory requirement to meet is that invention should be not obvious to a person skilled in the art.
A skilled person simply is a hypothetical person who knows everything about technologies that have existed prior to your invention.
For example, there may be various parameters such as a special proportion of ingredients and/ or a step of heating on a specific temperature range for a specific time period and/ or stirring at a particular RPM and/ or freezing for a particular time period on a particular temperature range, and/ or using a particular density of ingredient-paste, etc.
Such parameters may be essential in bringing technical advancement and/or economic advantage to your food item/ dish.
For example, let’s assume that a step of heating an ingredient for 2 hours at a 125-degree Celcius temperature adds an effect to your food item in such a way that it can stay preserved for 6 months without any need for preservation.
Further, these paramters were discovered by you and as a result, were not known to anyone prior to your invention. This way, your invention becomes not obvious to a person skilled in the art.
Note: You should try to balance the scope of your claims. How?
Your claims should be broad enough so that they can cover parameters in more liberal way.
For example, if your invention utilizes a particular temperature range then avoid narrowing down this temperature range unnecessarily in claims.
In this case, our aim should be to keep the parameters broad enough that it covers all possible aspects of our invention but not so broad that it fails novelty and inventive step test when compared to existing technologies.
3. Your Food Invention Should Be Capable Of Industrial Application
Generally, this step of the patentability test is met by most inventions. This simply means that your invention should be practically useful so that it can be applied to the industry.
If your invention can be used/ made on an industrial level then it passes this test. This step is to assert whether your invention is useful.
4. Your Food Invention Should Be Patentable Subject Matter
Section 3 of the Indian Patent Act lists out “what are not inventions” as per the law in India. In simple words, this Section lists out the inventions that cannot be patented in India.
Food-related inventions mostly face clause (e) of Section 3 that is Section 3(e). Other clauses that your food application may face are clauses (d), (j) & (p) of Section 3.
For your quick reference, we have re-produced these clauses in the Table below:
|Clauses of Section 3||Statement|
|(d)||the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new|
property or new use for a known substance or of the mere use of a known process,
machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
|(e)||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 substance are not an invention and hence can’t be patented.|
|(j)||plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;|
|(p)||an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”|
One thing you should understand is that getting a patent is like cracking a deal. So, just like in a deal, there is a back-and-forth negotiation between the applicant and the patent examiner during the examination process.
Note that the examiner tries to make his position strong by raising as many objections as he/ she can. It doesn’t mean that the examiner doesn’t want to give you the patent at all.
It’s his/ her job to examine the application from all possible aspects by asking questions and raising objections. The same approach we see in a court where a Judge asks a lot of questions to parties involved in the case.
After the discussion done so far, it is safe to say that It comes down to how you negotiate with the examiner by replying back to his/ her objections.
In the process, the examiner takes some steps back, some steps are taken back by you and finally you both reach the deal i.e. the patent is granted for agreed set of claims.
It should be clear to you by now that if your food application is objected based on Section 3 (see table above), you shouldn’t worry too much. Further, you should work on the ways of responding back in the best possible manner.
5. You Should Get NBA Approval, If Required
Sometimes, you may have to take permission from National Biodiversity Authority (NBA) as per Section 6 of the Biodiversity Act 2002.
This act mandates that if biological material obtained from India is used in the application for a patent, then permission and other information for making an application for a patent should be obtained from the NBA.
If you are wondering how the objection regarding NBA approval is raised in an objection, we have included a snap from the first examination report to application 201821013122.
You yourself can check out more about this case here. This will give you clarity about the whole process which is undertaken regarding NBA approval.
The discussion so far was limited to understanding the process of patenting a food-related invention i.e. a recipe. Now the question is, why not understand the process through real examples of food-related patent applications? That will give you much better clarity.
Note: If you want to access relevant documents and details about Indian Patent Applications and Patents then you may do so on INPASS.
Applicant– Société des Produits Nestlé SA
Application Number– 201917016223
Title– BEVERAGE COMPOSITION USEFUL IN BEVERAGE CAPSULES
Granted Patent Number: 397815
Brief about invention and the case–
The granted claim is a method claim. The invention relates to beverage compositions useful in beverage capsules and their preparation.
In particular, the invention is about the beverage compositions comprising roast and ground coffee and dried coffee extract obtained by extracting coffee at a temperature below 60 degrees Celcius.
The applicant claims the prior beverage compositions don’t deliver the aroma intensity as that of its beverage.
For example, the invention claims both (1) roast and ground coffee and (2) a dried extract of coffee obtained by extracting roast and ground coffee with water at a temperature below 60 degrees Celcius.
This way, the invention is able to deliver sufficient taste and aroma which is similar to that of traditional cold brew coffee, when used in a traditional beverage preparation machine with an extraction time of at most a few minutes.
How is invention better according to the applicant?
- The beverage compositions only containing roast and ground coffee do not offer the same aroma intensity.
- Similarly, the beverage compositions only containing a coffee extract below 60 degrees Celcius do not deliver the same aroma intensity.
- The next advantage the inventor cites is that beverage compositions prepared at low extraction temperature are not stable during storage, however, their invention solves this problem.
Therefore, the applicant claimed a technical advantage of sufficient taste, aroma intensity, and stability during storage.
This application was also objected to on the basis of Sections 3(e), 3(d) & 3(p) but in the end, the applicant was able to overcome these objections.
Initially, the application had both types of claims i.e. composition claims and process or method claims. But the patent was granted only for process claims.
Applicant– LELE; SMITA SATISH
Application Number– 201721008679
Title– FOOD PRODUCTS WITH REDUCED NATURAL SUGAR CONTENT AND PROCESS OF PREPARATION THEREOF
Granted Patent Number– 373232
Brief about invention and the case–
The invention relates to a food product with reduced natural sugar content. Food products may include products of vegetables or fruits.
The invention claims that such food products are useful for diabetic patients and there is no loss of natural organoleptic properties. The invention also provides a process to prepare such food products.
The invention relates to a food product with reduced natural sugar content. Food products may include products of vegetables or fruit. The invention claims that such food products are useful for diabetes patients and there is no loss of natural organoleptic properties. The invention also provides a process to prepare such food products.
Initially, the inventor claimed both the fruit juice product having reduced natural sugars and the process to prepare such fruit juice.
How is invention better according to the applicant?
- The invention provided fruit juice product that resulted in reduced natural sugars. Further, the fruit product retained natural fibers, nutrients, and organoleptic properties.
- Thus, the applicant claimed a technical advantage over similar existing fruit juice products. The applicant further claimed to have solved the problem faced by diabetic people.
This application was also objected to on the basis of Sections 3(e), 3(d) & 3(p) but in the end, the applicant was able to overcome these objections.
Initially, the application had both types of claims i.e. product claims and process claims. In the process, the applicant had to drop the product claims and only process claims were granted.
You can go through many such examples. We have listed a few more food applications with brief detail about them.
1. Application 201711030015– This food application relates to Jiffy food mix in general.
In particular, it relates to shelf-stable Jiffy food mix, prepared using Semolina (Also called Sooji in Hindi).
Further, it also claims a process for making the food mix from Semolina with rapid reconstitution property. Just like any application, it claims both the product/ composition and process/ method claims. You can check its status on INPASS.
2. Application 201821013122– This food application is related to a peanut food bar having long Shelf life and good flavor.
it claimed the process of making said peanut food bar and it was granted a patent after a few changes.
This application required NBA approval and the approval was given to the applicant by the competent authority.
3. Application 201947035750– This food application relates to tempering-type chocolate and its process which includes seed tempering.
Initially, it claimed both the chocolate and its preparation method/ process, however, in the end, only method claims were granted.
4. Application 202111042007– This food application is related to milk protein concentrate (product) and the method (process) of producing it.
It claimed both product and process and claim and both types of claims were granted.
We, hope the examples of food-related patent applications that we have provided will give you a good understanding of patenting of food-related inventions i.e. your yummy recipe.
The major takeaway from these examples is that in most applications not all, only process claims were granted or in other words there are high chances of grant for a process claim than product claim. But it is equally important to understand, that nowhere, it is prohibited to patent product/ composition claims as we can see in 4th example just above this paragraph.
What are the benefits of getting a patent for your recipe?
The benefits of getting a patent for your recipe are similar to getting a patent for any other product. We have listed some of the benefits here for your quick reference.
- You get the monopoly so you can exercise your negative patenting rights to stop others from selling, making, using, or importing your food invention.
- You can advertise your food item through a patent. For example, World’s best patented Dosa or Best patented fruit juice for diabetic people.
- You can raise funds from investors for your invention citing your patented recipe that no one else can copy. Imagine going to the investor for funds claiming that only you can make, use and sell the food item in the whole country. The confidence of investors in your business is guaranteed to boost if it is supplemented with a good food product.
- Even if you have just applied for a patent, you can still advertise your food item. For example, India’s best patent pending peanut bar. Further, you can associate the application number with food item while advertising on printed banners, posters, etc.
- If the patent is granted to you, you always have the option to license it, sell it, etc.
- You can use your patent as collateral in some cases just like your tangible property.
- Through patents, you can build your brand in the food industry.
What Options Do You Have Other Than Patents To Protect Your Recipe?
Not all applications filed for patent are approved and issued a patent certificate. In fact, rejected applications outnumber the granted applications.
Also, not all situations favor patents as a choice of protection for intellectual assets like your recipe, Coca-cola’s signature drink recipe for example.
So what are the options you have if you can’t get a patent for your recipe or if you don’t want to get a patent for your recipe?
The other options you have are Trade-secrets and Copyrights.
Let’s discuss Trade-Secrets first and see if these are suitable for the protection of your recipe.
You can protect any confidential business information which provides a competitive edge and is unknown to others as a trade secret.
Companies protect their informational assets that give them an edge over their competitors. The information may include industrial processes, customer data, strategic plans, and so on.
It’s not the companies only that use trade secrets to their advantage. There exists many examples around us. For example, we all have come across information about a person or a family who maintains secrets within the family about some medicine or cure and they don’t reveal it to anyone else, ever.
There is no registration cost for trade secrets and are immediately effective. Trade secrets are not limited in time, unlike patents. So, they pose as an attractive option. No wonder companies like
Coca-cola protects its signature drink recipe,
Google protects its search algorithm,
New York Times protects the definition of best seller book,
McDonald’s protects its Big Mac Special Sauce recipe,
KFC protects its tasty chicken coating prepared with 11 herbs and spices through trade secrets.
what qualifies as a trade secret?
Any commercial valuable information which is known to a limited group of persons and is subjected to reasonable steps taken by the rightful holder of the information to keep it secret. Reasonable steps may include Non-disclosure agreements (NDA), Non-compete agreements (NCA), Robust IT infrastructure, and controlling the accessibility of documents consisting of information about trade secrets.
Note: NCA is what an employer may ask to sign its employees, contractors and consultants so that they don’t enter into employer’s competition when their service/ employment ends.
Enforcing the trade secrets is tough.. very tough. At first, it may appear an attractive option. However, compliance conditions may prove to be more difficult and costly than it would appear at first glance.
Just to give you an idea, McDonald’s Big Mac Special Sauce recipe was so secret that it got lost during reformulation in the 1980s. It was noticed by an executive when he wanted the original recipe brought back. McDonald’s was fortunate enough that they were able to retrieve it from the original creator’s records.
If someone independently discovers your trade secret then you can’t stop him/ her from using it. In fact, if that person wants to patent it then your trade secret won’t act as prior art. So, that person can get a patent for it. You should know that you can sell and license the trade secret.
Let’s compare patents and trade secrets so as to evaluate the best option for your recipe.
|Valid for a limited period, 20 years for example||Valid for an unlimited period|
|Information is public||Information is secret|
|You can stop others even if they invent independently||You can’t stop others if they discover your trade-secret|
|No such compliance required||Costly and difficult to keep the information secret|
|No fear of theft||The constant fear of theft or misappropriation as the whole business depends upon keeping the trade information secret.|
|Effective from the date of publication of application if the patent is granted||Effective immediately|
|Registration cost is substantial||No registration cost|
Note: It is important for you to keep in mind that not every business-related information can be protected through patents. This may happen for your recipe also. Therefore, in such cases, you have no other option but to opt for the route of trade secrets.
Can you Protect Your Recipe Through Copyright?
You cannot stop others from using your recipe through copyrights. However, you can record your recipe in different mediums protected under Copyright Act for example in a book, in a video, etc. In this case, the protection will be limited to the book or the video, or any such medium in which you decide to record your recipe.
So, copyright should not be the first choice when it comes to choosing the type of protection you want for your recipe.
We initially look in brief at whether your recipe or food invention can be patented. After this, we saw how can you get a patent for your food invention or recipe in India. This involved various criteria required for patentability.
We saw that your invention should be novel, inventive i.e. technically advantageous and non-obvious to a person skilled in the art, capable of industrial application, avoid clauses of Section 3 which lists out the invention that can’t be patented in India, and have NBA approval if required.
Moreover, to understand the patenting process in India for food inventions we took a few examples of food-related patent applications.
It’s not the patent always through which you protect your food invention/ recipe. Therefore, we discussed trade-secrets in such a way that you are able to get an idea about what is the best option for the protection of your food invention/ recipe.
We have crafted other similar topics related to patents that you can look at here.