Ever wanted to know the recipe for your favourite dish in a restaurant? Or wished that you could make Pringles at home? They wouldn’t be special or in demand anymore if you could do make it by yourself! This got me thinking on the best ways to protect food recipes and prompted me to write this article.

At the outset, I could think of protection of the recipe as a literary work under the copyright law but then if it’s out in the open, everyone would have access to it. So would that serve the purpose? Though registration will ensure that the you are the owner of the recipe, the point really is whether such a right can be enforced against someone who has tweaked it a bit to make it their own original work or someone has actually created it on their own.

So the next option is protect the recipe as a trade secret to ensure that the recipe is safe as a secret. One might think that is a task given the competition in the market, poaching of employees and transfer of information, but KFC, Coca Cola and the many more have managed to keep their recipes as a trade secret for a long long time.

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. However, there are a number of patents granted food compositions and methods/process of preparation but not food recipes per se.

Firstly, it is essential for the invention to pass the three-step test of novelty, inventiveness and usefulness. The next step is to ensure that the recipe or food composition doesn’t fall under the scope of Section 3 (e) is secondary. It will surprise you to know that these inventions are all granted patents!

  1. A process for the preparation of deep fat fried potato chips – Patent No. 192889
  2. The process of making fried masala banana chips – Patent No. 198069
  3. Process for producing baked potato slices with expanded texture – Patent No. 257367 (This one is by Frito Lay!)
  4. A process for the preparation of binder formulation useful for the preparation of agglomerated flavoured tea – Patent No. 250962
  5. Improved process for tea manufacture – Patent No. 250544
  6. A chocolate food product or ingredient and the method of making said food product or ingredient – Patent No. 258480 (Now can we all make Hershey’s Chocolate at home?!)
  7. A wheat chocolate bar for sustained energy release – Patent No. 229291

The title of these inventions on the face of it don’t seem to be novel and one may wonder what is new in the process of making potato chips or chocolates. But on perusal of the invention, I found that all these granted patents have one thing in common –the claims and the invention as a whole have passed the three-step test and also don’t fall under the ambit of Section 3 (e).

Firstly, it is extremely important to conduct a search to confirm that it is in fact novel before you proceed to file an application given the time and money involve from filing to grant of patents. The next step is to ensure that the patent application is carefully drafted keeping in mind the various objections that are likely to be raised on the point of novelty and inventiveness.

So if you have a food recipe which is novel and has an inventive step and is more than just a process of making a particular dish or product, intellectual property offers protection under patents. If you’re a chef or an individual just looking to protect your recipe (or a book of recipes) to establish ownership over it and have a date stamp on it, then copyright is the way forward. Lastly, for all those who want to safeguard their recipes by keeping it close to them, the best option is to keep it as a trade secret.

This article has been authored by Nikita, an IP Law practitioner.