ARE FOOD RECIPES PATENTABLE IN INDIA?

Introduction and Analysis

Yes, the answer is yes that a food recipe which a person claimed to be new can be patented in India. Though it depends on several factors, the answer is obviously yes regarding the patenting of a food recipe.

The 2005 amendment of the Indian Patent Act 1970 has proposed product patent protection for food, pharma and chemical inventions. If we have a look at the Indian Patent Database, we will come across many granted patents and several patent applications on one or more than one type of food compositions. Speaking particularly of food recipes, patenting food recipes which have a good chance of prospering can be a bit difficult. It doesn't matter how mouth-watering the food is or how much its maker is charmed about it, the recipe, at first should fulfil the primary requirements of patentability, which is that the recipe must be handy, novel and non-obvious.

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The recipe should be utilized for making a nutritional composition, doesn't matter whether it is for humans or pets, once it has nutritions, it clears the utility criteria. And the more novel and non-obvious the composition is, the more extra would be the possibility of getting a patent.

The recipe should not be a blend of material emerging in the collection of properties of the components” according to Section 3(e) of the Indian Patent Law. For example, solely taking the food items off the shelf and mixing them without doing anything special to the procedure does not pass the ‘inventive step’ requirement.

The most usual mistake being made while making a food recipe patent application is ignoring the nonobviousness requirement. One evaluation of non-obviousness would link to if the recipe and arrangement thereof are obvious to someone expert in the art of cooking? The answer must be no. If a person is using specific ingredients that have never been mixed before, the first bar of nonobviousness requirement is passed. For example, for making a honey sauce, it is easy to get composition claims which would have the ingredients and the proportional ranges, only if it has some original feature/ unexpected effect such as cholesterol-free, without loss of flavour or texture or mixing the ingredients in zero gravity for unexpected outcomes among other such standards. Almost every food patent asserts both composition and processes for making the same.

Process claims on a recipe, normally have more victory rates from point of view of getting patents than the composition claims in India. If the procedure of making a food product involves heating, mixing, frying, baking, fermentation, grinding, stirring, whipping, freezing, melting, moulting, grilling, ageing, etc, then one or more than one of these steps are the processes, which, if seen to be novel and including an inventive step, are important to the making and can be patented. One of the granted Indian Patents, for instance, claims a procedure for making a 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 very healthy, hygienic and nutritional beverage. Another Indian patent publication at the Indian Patent Office claims a process for preparing a soy curd involving the steps of selecting soybean, soaking the soybean, grinding and preparation of soy milk, making of soy curd for the fermentation, and last processing of soy curd.

Yet one more Indian Patent Publication claims a food product involving the whole roasted and ground roasted flax seeds, an antioxidant, a blend of spices and food additives, in which the whole roasted flax seeds and ground roasted flax seeds are there in a ratio of about 60:40 to about 90:10. The process further claims a procedure for the making of dough-based food products involving the steps of creaming stage, dough making stage, whereinto the mixture of step, whole roasted flax seeds and other food preservatives are added and mixed for 30 minutes.

Preservation step in a recipe can be a defining step and can expand the possibility of getting a successful and enforceable patent. For instance, an Indian patent claims a procedure of preserving food products for disabling microorganisms in food products by initiating an edible phenolic compound in a food product and subjecting the outcome food product involving phenolic compound to high-pressure conditions In addition, if your food recipe has some ingredients which in addition to giving nutritional benefits, also gives some therapeutic relief in some diseases, claiming the same is necessary for more strong protection.

I also suggest seeing at some of the Patents/patents pending published at the Indian Patent Office to give a rough idea to those having a sense of patentable recipes on how the recipes are made and patented. Frito Lays (of famous Lays Potato chips) has a number of published patent applications at the Indian Patent Office on the procedure of preparation for their recipes for distinct types of snacks.

Drafting a patent application is very important for making a strong recipe patent. Several standards, for example, proportions, cooking or mixing times, ingredients, should be kept as broad as possible which will also aid in reducing the potential of your competition writing around your claims with petty variations. For instance, if you want to claim a recipe for making flax-seed biscuit, do not limit your claims to biscuit, rather claim it as a food product. And if you are mixing sugar in your process for the sweetness, always 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 standards should be kept in a broad range. However, while claiming the ranges, be sure to be broad enough to safeguard your invention from your competitors but not as broad as to violate another’s patented recipe. Conducting a good patentability search is as vital in patenting food recipes as in chemical or pharma inventions.

BY- SHRUTI KULSHRESTHA

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