Patenting Indian food recipes - All you need to know

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India is known as the Land of Curries and Spices – for it is the birthplace of an other-worldly set of global cuisine. From a hot, spicy momos till finger-licking vadapav, from delicious idlis till unbelievable biryanis – food is at the heart of the Indian culture since time immemorial !

While it provides immense sense of satisfaction and love for the ones eating them, it is also a source of income for millions of Indians across different locations. India’s food processing sector is one of the largest in the world and its output is expected to reach $535 bn by 2025-26.

A survey by the National Restaurant Association of India (NRAI) shows that an average Indian person eats 6.6 times per month in dine in restaurants, or through online delivery, or other sources. And that too, the COVID-19 pandemic led to the restaurant industry or the food services industry contract by about 53 percent in the financial year 2021. With a huge and unending scope awaiting in near future, especially while the economy recovers in the post-COVID19 stage, the food industry needs to be well-catered to the growing competition in the market.

Fig. The Secret Recipe For Ghee Roast Known By Only 2 Women In The Shetty Family in Mangalore

Intellectual property protection offers a huge scope for protecting facets of the food industry – Trademarks, Copyrights, Trade secrets, Patents all can be of pivotal importance right from protecting the equipment to delivery apps to franchises and outlets. Trademarks are of quintessential importance in licensing a restaurant setup, merchandizing the food product, etc. Cookbooks and digital content like blogs, website, designs, etc. are copyright protected. Recipes can be protected through trade secrets. However, as an emerging trend, even food recipes can be patented in India but with a whole set of caveat.

PATENTING FOOD RECIPES IN INDIA

In India, the Indian Council of Agricultural Research (ICAR) and the Council Of Scientific And Industrial Research (CSIR) have patented intellectual property in the food sciences sector. In general terms, a patent is a statutory right given to its applicant by the Indian government for a new product or process for a period of 20 years. It is a territorial right and is utterly restricted to the Indian boundaries. While food recipes can certainly be patented in India, such an application will have to sustain the basic patentability criteria of novelty, non-obviousness and industrial application. Although, a patent application can be filed for food, chemical and pharmaceutical inventions with respect to the Patent Amendment 2005 of the Indian Patent Act, 1970, the prime hurdle remains that of Section 3 of the Indian Patent Act, 1970.

Section 3(e) of particularly states that 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 is not considered as an invention unless the functional interaction between the features of the components achieves a combined technical effect which is greater than the sum of the technical effects of the individual features. For instance, a recipe for a simple fruit salad with mere slices of diced fruits, cannot account for an invention according to Section 3(e) of Indian Patent Act, 1970 as it is a mere admixture of known ingredients.

GRANTED FOOD PATENTS IN INDIA

It is insightful to understand the nature of patented food recipes in India. In turn, it is evident that not the ‘recipe’ itself, but the product and/or the process is patented.

Fig. Recipe for Hershey’s Chocolate syrup is patented in India

For instance, Hershey’s chocolate syrup is a patented as “A CHOCOLATE FOOD PRODUCT OR INGREDIENT AND THE METHOD OF MAKING SAID FOOD PRODUCT OR INGREDIENT” under application number 4309/DELNP/2007. Another famous product, the Lays Chips, are patented as “PROCESS FOR PRODUCING BAKED POTATO SLICES WITH EXPANDED TEXTURE” under application number 2232/MUMNP/2010. There are a plethora of such instances of patenting food products.

POINTS TO CONSIDER FOR PATENTING FOOD RECIPES

  1. Conduct a good patentability research beforehand, prior to drafting the patent application.
  2. Prepare the draft patent application considering the patentability criteria. The food recipe should meet the patentability criteria of Novelty (e.g. a new ingredient which has not been previously used or is used in a novel way), Non-obviousness (e.g. should have an inventive step at least like in the process of manufacturing), and Industrial Applicability (e.g. like being useful to new-borns).
  3. More than the mere composition of ingredients, a process of manufacturing and/or the end-product can be preferred while drafting the patent application.

A well-drafted, up-to-the point draft (in terms of the patentability criteria) might well make a strong case for obtaining patent protection for your ‘food invention’.