This article is written by Aarti Gosavi, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

If you run a restaurant or a food blog, you might have questions about recipe ownership, protecting the novelty of your dishes and culinary copyrights. Questions of recipe protection plague many famous restaurants that create signature dishes. For instance, would the chefs who leave restaurants steal signature recipe blends and thus become rivals?

Can food recipes and compositions be patented in India? A recipe is a set of instructions for preparing a particular dish, in essence it is a mixture of a number of ingredients and a process for preparing them. Section 3 (e) of the Patent Act states that ‘mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance’ cannot be protected as an invention.

Patent protection for recipes

In India, there is no separate legislation that gives intellectual property protection to food recipes. Food recipes can be protected under the Patents Act, 1970 if and only if they satisfy the following conditions for it to be granted Patent protection. They are as follows:-

1) Novelty –The invention must be new and novel.

2) Non-obviousness –The invention must be inventive.

3) Industrial application –The invention must be industrially applicable i.e. it must prove useful to mankind.

Patent Amendment  Act,2005 of the Indian Patent Act 1970 has introduced product patent protection for food, pharma, and chemical inventions. Various types of food compositions have been granted patents and one can also find several patent applications in the Indian Patent Database. Irrespective of how amazing the recipe is, to increase its chances of getting patented, it has to fulfil the basic conditions of patentability- that is, that the recipe must be useful, novel, and non-obvious. Irrespective of whether the recipe caters to humans or animals, as long as it makes something nutritious, it can be deemed to have passed the utility criteria. Depending on the novelty and non-obviousness of the composition, one can estimate the chances of the recipe 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. Mixing random ingredients without adding any special process will not meet the requirements of “test of inventive step”. If the recipe being patented is obvious to someone skilled in the art of cooking, it will not be considered non-obvious. 

Generally, process claims on a recipe have a higher success rate from the point of view of obtaining patents than the composition claims in India. If the process of making a certain recipe involves heating, frying, grilling, fermentation etc as its processes, the novelty in any of these along with an inventive step of essence to the recipe can lead the recipe to be patented. eg: A patent has been granted in India to a process for preparing tender coconut wine by using fermentation of coconuts ripened over 7 months.

The concept of ‘Recipe Plagiarism’ is new age

With the rise in the number of celebrity chefs, the pressure to create new and original recipes has increased. This has led to two different and distinct views:

• One concept is that recipes can never really be protected and that no one can lay claim to it.
• The other ideology is that recipes should be seen as an intellectual property, with necessary safeguards against infringement.

So, to answer the primary question, there is no specific provision that protects food recipes. However, there can be certain safeguards that can be found in intellectual property laws.

Recipes aren’t a new invention or process, nor are they an identifier of a brand, so recipes can neither be patented or trademarked.

Procedure to obtain intellectual property protection through patent

The procedure to obtain patent protection in India is as follows:

Conducting a prior art search

The first and foremost step while registering for a Patent is to conduct a prior art search. In this step, we have to search in the Patent databases as well as in non- Patent literature whether any Patent in this field has been previously filed or not. This is done so that there is no infringement on the previous Patents that have been filed in this field before.

Drafting the patent application

The second step is to draft the Patent application according to the rules mentioned in the Patents Act, 1970. The application form is known as Form 1. The Patent application has to be submitted with the Patent specification. The Patent specification is known as Form 2. There are two types of specification which are 

a) Provisional specification –It is filed when the invention is not completely over.

b) Complete specification – It is filed when the invention is completely over. 

Publication of patent

Once the complete specification after the application has been filed then it is published in the official Patent journal. It is published after 18 months of applying. If one wants to publish the application before 18 months, then the applicant can make such a request in Form 9 for publishing it earlier. If the Patent application falls under Section 3 and Section 5 then it will not be published.

Examination of patent application

After the Patent is published in the official patent journal, it is examined by the Patent Office to check whether the claims made in the specification are eligible and as per the Patents Act, 1970. The request for examination has to be made by the applicant only after which the Patent Office will examine the application thoroughly. This request is made by filing Form 18 and if the Applicant wants the application to be examined earlier then such a request can be made by filing Form 18(A). A first examination report is sent to the applicant after reviewing the application in which objections as to why the Patent application is not suitable to be granted as a Patent are mentioned. The applicant then files a counter reply to the objections of the examiner of the Patent office.

Grant of patent

Once the examiner is satisfied with the counter reply to the objections stated by the applicant, then the final Patent is granted and an official Patent certificate is given for that invention.

Novartis AG vs. Union of India

Facts of the case

Novartis AG a Swedish multinational pharmaceutical company filed a Patent application for anti-cancer medicine ‘Gleevec’ before the Chennai Patent Office for the treatment of Chronic Myeloid Leukemia and Gastrointestinal Stromal Tumours which has been derived from beta Crystalline form “Imatinib Mesylate”. It is widely used for anti-cancer treatment and has been patented in more than 35 countries. Novartis had filed the Patent application before the 2005 amendment due to which only the process or method was given Patent protection but not the final product under Section 5. The Amendment in Patents Act, in the year 2005 repealed Section 5 and started giving protection to the final product as well.

Rules

Section 3 (d) of the Patents Act applies to this case. The Patent protection was rejected on the ground that this invention had already been published earlier and the same had been revealed to the public and thus failed to satisfy the condition of novelty and non-obviousness under Section 3(d).

Analysis 

Thereafter Novartis filed a writ petition in Madras High Court under Article 226 in 2006. Madras High Court transferred the case to IPAB (Intellectual Property Appellate Board). IPAB dismissed the appeal stating that the invention did not fall under Section 3(d) of the Patents Act, 1970. Novartis then filed a Special Leave Petition in the Supreme Court under Article 136 in 2009. The Hon’ble Supreme Court then rejected the Special Leave Petition mentioning that efficacy in new substance and the previous known substance is almost the same and hence the invention cannot be granted Patent protection under Section 3(d) of the Patents Act, 1970. This prevents any pharmaceutical company from evergreening already Patented products and which then provides easy access to life-saving drugs by giving rise to generic versions of the medicine produced by other pharmaceutical companies.

Thus, any new substance which does not result in any improved efficacy or does not give rise to any new product is not patentable under Section 3 and Section 5 of the Indian Patents Act, 1970 as was rightly decided by the Hon’ble Supreme Court.

Conclusion

Thus, if a recipe is prepared by mixing up ingredients that give a synergistic or an improved effect which in our case is a new taste and a new product altogether then the food recipe qualifies for Patent protection in India. Unfortunately, Patent protection in India is only for twenty years and cannot be renewed. The recipe can be protected as a trade secret but in India, we do not have any codified law on trade secrets. Coca Cola recipe has been protected in the form of patent from the time of its inception is now protected as a trade secret that is stored in a locker safely that gives it the required intellectual property protection. Thus, in India, this recipe can be protected by not revealing the recipe to anybody which then acts as a trade secret.

References

• https://www.mondaq.com/india/trademark/654712/intellectual-property-laws-in-india-everything-you-must-know
• https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf
• https://www.mondaq.com/india/patent/921780/what-mom-never-told-you-about-recipes-can-they-be-protected
• https://iiprd.wordpress.com/2019/07/15/a-study-on-novartis-ag-v-union-of-india/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
• https://www.intepat.com/blog/intellectual-property/consequences-ip-infringement-india/
• https://timesofindia.indiatimes.com/travel/eating-out/irani-chai-taste-of-persia-in-hyderabad/amp_articleshow/32651993.cms

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