This article is written by Aishwarya Parameshwaran pursuing Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.
While relaxing on a Sunday afternoon, sipping on that chilled Kingfisher beer, have you ever wondered who invented this drink? What is the process involved in creating this art? Can a beer recipe be patented in India? If you have, then this article is going to answer all your questions. If you haven’t, then here are some interesting facts about the third most popular drink across the world and the rights arising from its recipe.
Brewing history of beer
Brewing is the process of producing beer by soaking the starch that comes out of cereal grains in water. Later this liquid is fermented with yeast and flavoured using hops flower. There are two ways of brewing beer, one which is done by a commercial brewer at a brewery, and the other is done at home by a homebrewer.
Brewing is a traditional method that has existed since the 6th millennium BC. The nineteenth century saw the emergence of the brewing industry in western countries and today beer is one of the most popular drinks across the world.
Law of patents
What is a patent and how does it provide protection?
Patent is a branch of intellectual property rights that is exclusively granted by the government to the inventor and restricts others from using, making, and selling his innovation for a specified period of time.
This patent protection is also available for the improvement and new development in their previous invention. The intent of parliament in enacting this law and granting protection is to encourage inventors to create more and contribute more in the field of innovations.
The term of patent protection for Indian patents is 20 years from the date of filing of the application, subject to the payment of annual fees. The Patents (Amendment) Act, 2002 introduced this 20-year term. After this specified term is over, the inventor no longer enjoys patent protection.
Does Patent law protect recipes in India?
Sections 3 and 4 of the Indian Patents Act, 1970 specify what cannot be patented in India. These Sections provide a list of exclusions to determine whether an invention is a subject matter of patent. If the invention doesn’t form a part of the list of exclusions, then it means that it is a subject matter of patent. There was a lot of ambiguity as to the patentability of recipes until the 2005 amendment.
The 2005 amendment made in the Indian Patent Act, 1970 has paved the way in protecting food and beverage, pharma, and chemical inventions under product and process patents. So far, a number of patents have been filed and granted on a variety of beverage compositions and processes.
Although the amendment provides for patent protection to food and beverage recipes, in order to attain this protection, the recipe needs to satisfy the basic requirements of patentability. Satisfying these requirements especially with respect to food and beverage recipes gets a little tricky.
The three tests
As per the Indian Patent Act, the three basic tests for any invention to be patentable are:
The act mandates that the invention must be novel and should not already be in existence. As per the definition given under Section 2(l) of the Patent Act, “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art.
It means that the invention must not be obvious, it must provide a significant improvement to the existing recipes, mere change shall not be eligible for patent protection. As per Section 2(ja) of the Patent Act, “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.
The invention must be useful in a bonafide manner. It means that the invention must have some use and should not be in contravention to the laws of the land. As per Section 2 (ac), the invention must be capable of industrial application. It means that the invention must be capable of being made or used in industry.
Section 3(e) of Indian Patent Act, 1970
This Section lays down an additional requisite which needs to be fulfilled for acquiring patents. The Section provides 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’ shall be excluded from being the subject matter of patent.
So, as per this Section, merely using the same old ingredients and mixing them without coming up with a new step would not satisfy the nonobviousness requirement. There needs to be an innovative and inventive step that is not known to those who are masters and well versed in that field; a unique step that significantly stands out as a different process would only pass the criteria.
Whether the recipe, ingredients, or process of making the food or beverage are obvious to a skilled cook can be said to be a basic test for non-obviousness. So, if a food or beverage recipe uses a unique process or substitutes an ingredient with a nonobvious ingredient, which ultimately increases the nutritional quotient of the end product, then there are higher chances of it passing the utility criteria. We can say that the higher the novelty and nonobviousness in the process or product, the higher the chance of it getting patent protection.
Analysing whether Kingfisher’s beer recipe can be patented in India
Beer brewing involves certain basic ingredients, i.e., water, fermentable starch source such as malted barley, yeast and hops flower. Most beer brewers use these ingredients and the same process while brewing. The starch sources of millet, sorghum, and cassava are some of the less widely used starch sources. Some of the other well-known starch source alternatives are corn, rice, sugar; often, these are used to reduce production cost. Many brewers also use wheat starch to retain a foamy lather at the top of the beer glass. The process of brewing includes malting, milling, mashing, lautering, boiling, fermenting, conditioning, filtering, and packaging. And voila, that’s how beer is made!
Background of Kingfisher
Kingfisher has been popular in the Indian market for decades now. This beer brand was launched in 1978 and is of Indian origin. This popular beer is brewed by United Breweries Group, Bangalore, and has its sale in 52 other countries.
Analysing the requisites with respect to Kingfisher beer
As we discussed earlier, just as any food or beverage, even a beer recipe, would have to satisfy the criteria specified under the Indian Patents Act, to be patentable.
Since beer and its brewing process is an age-old tradition in many countries, its recipe is commonly known to those who are experts in the art of brewing. We can say that the beer brewing process used by most brewers is the same, the only thing that changes the flavour, colour, and texture of the beer is the choice of ingredients and the method used during the process.
If a brand like Kingfisher tries to acquire a product patent on beer, it would get rejected because beer has existed in the market for ages. However, if Kingfisher uses a process or an ingredient that is unique and so far not known to any brewer then it stands a chance in meeting the non-obviousness criteria and the process may get patent protection, provided it satisfies other requisites as well.
If the beer brewing process involves malting, milling, mashing, lautering, boiling, fermenting, conditioning, filtering, and packaging, etc and if one or more of these steps is found to be an inventive step then the bar of novelty will be satisfied and the recipe shall be eligible to get patented. In the case of Kingfisher, it largely produces lager beer wherein it uses the starch resource of barley. It is the most commonly used grain ingredient for beer brewing. So, in the future, if Kingfisher substitutes this grain with an ingredient that has never been used before and ultimately satisfies the other requisites then Kingfisher’s new variant is likely to get patent.
In order to clear the third bar of usefulness, Kingfisher can maybe come up with a beer variety that is fat-free or sugar-free which basically, makes the beer variant more nutritional. This could help Kingfisher meet the usefulness bar.
Reasons why big brands don’t patent their recipes
So far, the owners of big brands in the food and beverage industry have been protecting their interests by registering their logo, label, and brand name under trademark; by acquiring copyright protection for their advertisements, and by getting their packaging covered under design protection.
Mostly, the owners protect their unique recipes by either keeping them a secret or they enter into an exclusive contract wherein their trade secret remains confidential. The owners take this recourse because, once their product or process gets patented, the owner will only get to enjoy patent protection for a period of 20 years as mandated under the Act. Once the term is expired, the recipe would then lie under the public domain. In order to continue reaping benefits from their unique recipes, inventors/owners avoid getting their recipes patented.
A conclusion from the above analysis can be drawn that, after the 2005 amendment in the Indian Patent Act, 1970 a beer recipe is eligible to get a patent provided it suffices the conditions specified under the Act. However, the inventors/ owners of big brands like Kingfisher avoid getting their recipes patented in the fear of losing their exclusive right on their unique recipe and eventually losing out on profits.
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