Patentability of Food Recipes and the Section 3(e) Challenge

Introduction

Recently, the office of Controller General of Patents, Designs & Trade Marks granted a patent to a ragi walnut soup mix prepared by the 52-year old woman, Shubhangi Patil. In terms of preparation, it is similar to other ready-to-eat soup mixes available in the market but what makes it different from the rest is its contents and the combination of materials used. In her patent application, she claimed that her soup is free from preservatives and artificial additives. The food preparation came out of a necessity when doctors recommended her husband to intake a high protein diet to recover from post accidental weakness. The diet consisted of eggs, lamb trotters soup and other meats but her husband is a vegetarian. She chose walnuts and ragi as an alternative to the meat which made her soup rich in omega-6 fatty acids and calcium.

Apart from the soup mix, there are various other food processes which were granted patent such as process for the preparation of fried masala banana chips, deep fat fried potato chips, baked potato slices with expanded texture (by Frito Lay!), wheat chocolate energy bar for sustained energy release, tea manufacture, etc.

All of the above-mentioned instances raise a question “Are the food recipes patentable in India?” The answer is yes. After the Patent Amendment Act 2005, patent protection for food, pharma and chemical inventions is possible but this concept not very popular in India. The major challenge to patenting a food recipe lies in Section 3(e) of the Patents Act, 1970 as it prohibits to grant protection to anything which is a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. Despite the above-said provision, various patents as mentioned above were granted to the food composition, methods or process of preparation.

For understanding the issue at hand, one needs to be aware of the meaning of a patent and food recipe. A patent is a set of rights granted by the government to the inventor for his invention. The term “invention” has been defined in Section 2(j) of the Patents Act, 1970 as a new product or process involving an inventive step and capable of industrial application. To acquire patent protection, the following conditions are required to be satisfied:

• It should be an invention.
• It should be non-obvious or an inventive step.
• It should have an industrial application.

Food recipe consists of a combination of ingredients and a particular process for preparing the desired dish.

Need For Granting Patent Protection To Food Recipe

Chefs across the world spend a good amount of time to come up with new food recipes but even though how much fascinated was their recipe, their efforts often go in vain as there are no specific laws to give protection to their food recipes, in absence of which other people can easily copy their recipes without committing any illegal act. For getting due recognition to their efforts, chefs time and again seek the protection of a patent or trade secrets to preserve their food recipes. As mentioned above, only those food recipes which are able to meet the three-step requirements and do not fall under the ambit of section 3(e) can be granted protection under the Patents Act, 1970.

Conditions Precedent for Acquiring a Patent on Food Recipe

Like other inventions, for acquiring a patent on a food recipe or food composition, the applicant is required to prove that his or her food recipe or composition has met the three-step test requirement:

1. Novelty: The term novelty is defined in Section 2(l) of the Patents Act, 1970 as any invention or technology which has not been published or used in the country before the filing of a patent application by the applicant. The claim of the applicant should not be the one existing in the public domain at the date of filing of an application.

2. Non-Obviousness or Inventive Step: Section 2(ja) of the Patents Act, 1970 defines an inventive step as a feature of an invention that involves technical advance over the existing knowledge. Furthermore, the invention should not be obvious to any person skilled in the same field.

3. Industrial Application: The invention of the applicant should be capable of use in the industry. This ensures that the invention has a practical utility and does not exist in the abstract.

In addition to this, the applicant has to check that his or her food recipe or composition does not attract section 3(e) of the Patents Act, 1970.

Patent or Trade Secret: Best Manner for Protecting Food Recipes

When it comes to protecting food recipes, people often confuse with protecting their recipes as a patent or as a trade secret. There are many big companies which are able to protect their trade secrets from more than past 70 years like the formula for Coca-Cola, the recipe of Dr Pepper, KFC’s “Secret Recipe of 11 Herbs and Spices”. Here, the question comes to the minds of the readers as to what is the best way of protecting their food recipes? A trade secret is any confidential information which confers economic benefit and a competitive edge to the holder. Unlike a patent, the holder of a trade secret is not required to disclose the information to the world and usually, the secret is known only to the small portion of the people. In spite of all this, it is preferred to patent a food recipe than to keep as a trade secret because the trade secrets are not protected by the laws of the country like a patent or a trademark and there are high possibilities that any person may come up with the secret recipe by reverse engineering. If any person finds out the trade secret with his intellect then that person can patent it and legally use it.

Another circumstance where a trade secret fails to give protection to the holder is, if in any case, the trade secret is revealed and comes out in the public domain, then anybody can use it without committing any illegal act.

Conclusion

Patenting a food recipe is possible but it is not as easy as patenting other inventions. Before filing a patent application, the applicant should conduct in-depth research and check that his invention is novel as the process of filing a patent involves a good amount of time and money. Secondly, the patent application should be drafted meticulously to answer all the possible objections. The applicant should emphasis on the special feature that makes his recipe different from other similar food recipes and proves that his invention is not merely an addition/improvement of existing recipes, for instance, achieving similar texture without adding sugar, adding unusual off-shelf ingredients into the recipe, frying or heating for a particular time to get the desired dish, etc. If a patent application is related to a process claim for a new recipe then it has more chances of getting succeeded. Many a time, even after trying to the level best possible, the patent claim for a food recipe fails due to lack of patentability, then, in that case, the last option left with the applicant is to seek the protection under the Copyright laws of the country by publishing a recipe in the book and getting it copyrighted.

Author: Pratiksha Rawat, a law student of Amity Law School Delhi, an intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at [email protected].