Is it possible to protect your food recipe in India?
Intellectual Property Rights provide the owner to have their own identity and uniqueness in the market from the others whether in terms of trademark, patent, copyright, design, or combination of anything.
Now the questions arise for those homemakers or chefs who made and invent new food recipes by the existing raw material in a new way, form, shape, color, or any combination and how they protect it from others.
In Patent Act, of 1970 food recipes can be protected if and only if they satisfy the following conditions for it to be granted Patent protections. Patent Amendment Act, 2005 of the Indian Patent Act 1970 has introduced product patent protection for food, pharma, and chemical inventions.
Food Recipes cannot be copyrighted since it only lists ingredients and a method; similar to that idea, facts, and history they cannot be copyrighted. Yes, if the recipe is summarized in writing, it may have copyright as a literary work.
Key Criteria for Food Patent:
1) Novelty –The recipe must have an element of new and novel methods, not just an extension of the older method.
2) Non-obviousness –The invention must be inventive not just mixing raw materials which result in the obvious recipe.
3) Industrial application –The invention must be industrially applicable i.e. it must prove useful to mankind or animal or industrial level.
The procedure to obtain patent protection in India for food recipes are as follows:
- Conducting a prior art search: The first and foremost step for 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.
- Drafting the patent application: The second step is to draft the Patent application in Form 1 according to the rules mentioned in the Patents Act, 1970 along with the Patent specification is known as Form 2. There are two types of specifications which are
- a) Provisional specification: Filed when the invention is not completely
- 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.
4. 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.
5. 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.
Examples of a Patent on Food Recipe
- Patent No. 192889 – A process for the preparation of deep fat fried potato chips
- Patent No. 250544 – Improved process for tea manufacturing
- Patent No. 257367 – Process for producing baked potato slices with an expanded texture
- Patent No. 258480 – The method of making a chocolate food product or ingredient
Therefore, while there are no ‘sure-shot’ legal safeguards for food recipes, they are often protected as trade secrets. If the chefs choose to disclose these secrets, they ensure that they are protected by confidentiality agreements and non-disclosure contracts.
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