Are food recipes patentable in India?

1st August, 2011 - 7:53 am Categories: IP Practice in India 1 Comments

A few days back, one of our clients came to us asking whether his new food recipe, which he claimed to be new, can be patented in India or not. The answer of course is yes, though depending on a number of factors which we discuss hereinafter.

Patent Amendment 2005 of the Indian Patent Act 1970, as we all know, has introduced product patent protection for food, pharma, and chemical inventions.  If we look at the Indian Patent Database, we will find a number of granted patents and hundreds of patent applications on one or other types of food compositions.  Talking specifically about food recipes, well, patenting food recipes that have a strong chance of succeeding can be a little tricky. No matter how tasty the food is or how much its creator is fascinated about it, the recipe, first of all, must meet the basic conditions of patentability, which are that the recipe must be useful, novel, and non-obvious.

As long as the recipe is used for making at least a nutritional composition, no matter whether it is for humans or pets, it passes the utility criteria. And the more novel and non-obvious the composition is, of course, the stronger would be the chances of getting a patent.

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.

The common mistake is made while preparing a food recipe patent application is missing the non-obviousness requirement. One test of non-obviousness would relate to whether the recipe and composition thereof are obvious to someone skilled in the art of cooking? The answer must be no. If one is using certain ingredients that have never been combined before, the first bar of non-obviousness requirement is cleared. For instance, for making a tomato sauce, it is possible to obtain composition claims which would contain the ingredients and the proportional ranges, only if it has some inventive feature/ unexpected effect such as cholesterol-free without loss of flavor or texture or mixing the ingredients in zero gravity for unexpected results among other such parameters. Almost all food patents claim both composition and processes for making the same.

Process claims on a recipe, generally have more success rates from point of view of obtaining patents than the composition claims in India. If the process of making a food product involves heating, mixing, frying, baking, fermentation, grinding, stirring, whipping, freezing, melting, molting, grilling, aging, and so on, then one or more of these steps are the processes, which if found to be novel and involves an inventive step, are essential to the invention and can be patented. One of the granted Indian Patents, for example, claims a process for preparing tender coconut wine through fermentation of tender coconut water from tender coconuts ripened 7 months or below and further claims the produced wine to be a highly healthy, hygienic, and nutritional beverage. Another Indian patent publication at the Indian Patent Office claims a process for preparing a soy curd comprising the steps of selecting soybean, soaking the soybean, grinding, and preparation of soy milk, making of soy curd for the fermentation, and final processing of soy curd.

Yet another Indian Patent Publication claims a food product comprising the whole roasted and ground roasted flax seeds, an antioxidant, a blend of spices and food additives, wherein the whole roasted flax seeds and ground roasted flax seeds are present in a ratio of from about 60:40 to about 90:10. The application further claims a process for the preparation of dough-based food products comprising the steps of (i) creaming stage, (ii)  dough making stage, whereinto the mixture of step (i), whole roasted flax seeds and other food additives are added and mixed for 30 minutes.

The preservation step in a recipe, if any, could be a defining step, and can increase the chances of obtaining a successful and enforceable patent. For example, an Indian patent claims a process of preserving food products for inactivating microorganisms in food products by introducing an edible phenolic compound in a food product and subjecting the resulting food product containing phenolic compound to high-pressure conditions. Furthermore, if your food recipe contains some ingredients which in addition to giving nutritional benefits, also gives some therapeutic relief in some diseases, claiming the same is important for stronger protection.

I also recommend looking at some of the Patents/patents pending published at the Indian Patent Office to give a good idea to those having a sense of patentable recipes on how the recipes are drafted and patented. Frito Lays (of famous Lays Potato chips) has a number of published patent applications at the Indian Patent Office on the processes of preparation for their recipes for different kinds of snacks.

Drafting a patent application is very crucial for making a strong recipe patent. Various parameters, for example, proportions, cooking or mixing times, ingredients, should be kept as broad as possible which will also help reduce the potential of your competition writing around your claims with small variations. For example, if you want to claim a recipe for making flaxseed biscuit, do not restrict your claims to biscuit, rather claim it as a food product. And if you are adding sugar in your process for the sweetness, remember honey, corn syrup or molasses can do the same, and therefore, while drafting a patent, just claim the ingredient as a sweetener. The proportions, the temperatures, the duration, among other allied parameters should be kept in a broad range. However, while claiming the ranges, be sure to be broad enough to protect your invention from your competitors but not as broad as to infringe upon another’s the patented recipe. Conducting a good patentability search is as important in patenting food recipes as in chemical or pharma inventions.

Conclusion and Key Takeaways:

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

• The recipe should not be within the ambit of Section 3 (e), wherein it is just a mere admixture of known ingredients.
• 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.
• A process claim for a new recipe would have a better success rate of obtaining a patent than composition, (again depending on the inventiveness of the composition itself) but at the same time enforceability of the protected IP should be considered and balanced out.
• A skillfully drafted patent application claiming the elements intelligently.
• 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!

With this note, I wish you all a ‘yummy’ week ahead 🙂

Happy patenting!

Author: Ms. Meenakshi Khurana, Patent Specialist at IIPRD and can be reached at meenakshi@iiprd.com