Protecting recipes: Gaps in Indian laws

Although recipes may be protected under extant intellectual property legal instruments like patents and copyright, there is a need for better laws to protect secret ingredients.

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THE history of patent law in India goes back to 1856. The Act VI, 1856 covered protection of inventions, and was based on the British Patent Law Amendment Act, 1852. Under the Act VI, 1856 certain privileges were granted to inventors for a period of 14 years. 

In essence, patent laws provide protection to certain ideas and inventions of people by restricting others from copying the same. Every country has its own patent laws. India has the Patent Act, 1970 that protects the original ideas and inventions of an individual or group. 

Does the Indian patent law cover food recipes?

After the Patents (Amendment) Act, 2005 that amended the Indian Patent Act, it is now possible to get a unique recipe protected under the Act. This raises important questions such as: What are the prerequisites for getting a food recipe patent? What is the procedure for it? If one's food recipe is patented in India, will it restrict people from another country, who are not in the jurisdiction of Indian laws, to copy it? 

Essentially, one can patent a food recipe in India if it meets the requirements given in Section 3 of the Patent Act. Food recipes that have been patented include 'Improved Process For The Coating And Flavoring Of Snack Foods' (2004), 'A Process For The Preparation Of Sugar Free Bread' (2004), and 'Foamable Milk Composition' (2012). Since these recipes have been patented, everyone else is restricted from copying the recipes. 

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In 2020, homemaker Shubhangi Patil, a 52-year-old woman, was granted a patent for her recipe of ragi walnut soup. The soup created by her is claimed to be free from preservatives and artificial additives. It consists of ingredients such as ragi satva, crushed walnuts, roasted edible gum and black salt. Like her, many people in India want to introduce their own flavours and recipes to create unique, healthy and delicious food using natural ingredients which are rich in nutrients too.

How can food recipes be patented?

Section 3 of the Patent Act gives three main criteria for a food recipe to be patented. Firstly, the recipe should be useful, which means that it should have some value in the eyes of the consumers. It should not be harmful and should not affect the health of consumers, that is, the food recipe should not lead to any food borne illness or health ailment. 

Secondly, the recipe should be new, unique and novel. Thirdly, the recipe must be non-obvious, that is, it should not be an obvious mixture of the ingredients that it contains. As stated in section 3(e) of the Patent Act, "a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components" is not an invention. 

Non-obviousness comes from a step in the recipe which gives a different result than usual. So if the recipe one wants to get patented is something obvious, like adding lemon to water, then it will make a lemonade: there is nothing novel in it, and therefore one can not get one's lemonade patented.

The above mentioned points are the major criteria that a food recipe must comply with for the purpose of being patented. 

Now, consider the procedure which one must follow to get their food recipe patent. A patent application must be filed in the appropriate office which has the jurisdiction determined according to the inventor's domicile. 

Mainly, there are four patent offices in India where one can file an application for getting a food recipe patent. The Patent Office Branch in Mumbai has jurisdiction over the states of Maharashtra, Gujarat, Madhya Pradesh, Goa and Chhattisgarh, as well as the Union Territory of Daman and Diu and Dadra and Nagar Haveli. The Patent Office Branch in Chennai has jurisdiction over the states of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Telangana, and the Union Territories of Pondicherry and Lakshadweep. The New Delhi Patent Office Branch has jurisdiction over the states of Haryana, Himachal Pradesh, Punjab, Rajasthan, Uttar Pradesh and Uttarakhand, and the Union Territories of Delhi, Chandigarh, Jammu and Kashmir, and Ladakh. The Kolkata Patent Office has jurisdiction over the rest of India.

Correctly drafting a patent application is extremely crucial since one small mistake in the draft may defeat the whole purpose of the patent. For instance, while filing for a food patent for a recipe, if one uses the word 'sugar' as an ingredient, then people may find an alternative like 'honey' and copy the rest of the procedure and, therefore, the recipe, which would defeat the purpose of the patent. 

Thus, it is important to be extremely cautious while drafting the patent application. One may rather use the word 'sweetener' instead of using the word 'sugar' to restrict such practices. In the application, one will also have to mention different parameters like temperature, length, quantity, energy value, claims, and many other specifications of the food recipe to make the patent claim stronger.

What other intellectual property rights are available for recipes?

If the food recipe does not meet the patentability criteria and one fails to get a patent for it, then there is always the option of getting it copyrighted. Needless to say, getting a copyright for a food recipe will not provide the same amount of protection as getting a patent would. 

To copyright a recipe, one can write a cook book with the recipe and get a copyright for the book from the responsible office. This way, even though people may plagiarise the food recipe, it will be recognised as an original and genuine work of the copyright holder. 

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What are the issues with patenting of recipes?

If one wants to get a food recipe patented in India, there are some lacunae in the Indian patent law that one should be wary of. 

Firstly, patents are granted for a limited period. If a food recipe gets a patent in India, then no one in India can copy it for the next 20 years and if someone wants to copy the food recipe for business purposes, then they will have to pay royalties. After 20 years, the food recipe will be public, and anyone can use it for any purpose, without legal repercussions or paying royalty. 

Secondly, patent rights are territorial. If one patents a food recipe in India, then it is only protected in the territory of India, but people outside India can copy it. For instance, if you patent your unique cholesterol-free burger recipe in India, then it is protected in the country, but people in the United States of America can copy it and use it for business purposes, and one will not be able to take any legal action against them. 

To avoid such situations, Coca-Cola and international fast food restaurant chains, like Kentucky Fried Chicken and McDonald's, get the intellectual property rights, including of recipes, protected first in their home countries, and then in other countries, often through their subsidiaries and franchises. This helps them protect their recipes globally.

How can Indian laws better protect recipes?

The patent law in India addresses almost every issue regarding the subject matter of patents, leaving only few areas where it needs to be improved. These areas are difficult to place under the umbrella of law. 

A way ahead is to cover food recipes under trade secret laws in India. Trade secret laws are more effective in terms of protecting food recipes as the main objective is to keep a certain ingredient of the food recipe confidential; for instance, the formula for making Coca-Cola is a trade secret which has been globally protected for more than 130 years now. 

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As of now, there are no trade secret laws in India, and therefore, people have to get their food recipes patented under the Patent Act. If the Indian Parliament were to formulate a suitable trade secret law in India, then one will not need a patent to protect recipes. Patents include a procedural part of the recipe, which makes it very difficult to get while keeping the unique ingredient a secret. 

Thus, trade secret laws are more effective for food recipes than patent laws. Countries like the U.S.A. have such protections, under the Defend Trade Secrets Act of 2016, and therefore people there, rather than getting their food recipes patented, make their food recipes confidential as a trade secret. 

The recipe, like Coca-Cola's ingredient "X" and KFC's original recipe, is kept unrevealed under the purview of trade secret laws. Therefore, India should also make an attempt towards implementing trade secret laws.