In India, culinary ideas and formulations cannot be patented. A cookbook, which provides a sequence of instructions for preparing a specific dish, essentially involves a combination of ingredients and a cooking method. According to Section 3 (e) of the Patent Act, processes that involve “simple mixing resulting simply in the agglomeration of the qualities of the constituents thereof” or “a procedure for making such material” do not qualify as inventions and cannot be patented.
In the context of culinary creations, the Patent Act does not extend protection to traditional recipes or cooking methods. Therefore, the process of filing a patent, including the Proper Process for Patenting food recipes in India, does not apply to culinary ideas and formulations in the same way it would to other types of inventions. Intellectual property protection for culinary creations is often limited to other forms, such as copyright for original cookbooks or trade secrets for unique formulations. In this blog, we shall explore all about patenting food recipes in India.
Exploring Patenting Food Recipes in India
For patenting food recipes in India under the ambit of the Patents Act of 1970, certain criteria must be met as outlined by the legislation.
1. Uniqueness Requirement
The foremost condition for patent registration is uniqueness. The recipe idea must stand out as distinct within the culinary industry.
2. Inventiveness Criterion
Beyond uniqueness, the product resulting from the recipe must demonstrate inventiveness. It should possess distinctive characteristics that set it apart.
3. Industrial Applicability
The innovation must prove its utility in the industry, contributing to the betterment of humanity. This criterion ensures that the patented idea serves a practical purpose.
Expansion of Intellectual Property Protection
The Patent Amendment Act of 2005 in India broadened the scope of intellectual property protection for food, pharmaceutical, and industrial innovations. Under the amended Indian Patent Act of 1970, various food formulations have been granted protection and patenting food recipes in India has become possible.
Essential Characteristics for Copyrighted Recipes
For a recipe to be eligible for copyright registration and protection, it must exhibit key characteristics of patentable subject matter, being helpful, new, and non-obvious. Whether the recipe is intended for human consumption or animal consumption is irrelevant; as long as it fulfils the utility requirement by producing something nourishing, it is eligible for protection.
Patentability Criteria and Section 3(e) of the Indian Patentability Act
The likelihood of a patent being granted is based on the uniqueness and non-obviousness of the composition. Section 3(e) of the Indian Patent Act prohibits the patenting of formulas that involve a simple mixing of materials resulting in the agglomeration of qualities. The application of a particular technique is crucial, and the absence of a creative step may render the patent ineligible.
Method Rights vs. Component Rights in India
In India, method rights for recipes generally have a higher likelihood of qualifying for patenting food recipes in India compared to component rights. The uniqueness of individual steps in the manufacturing process, such as warming, cooking, searing, or ripening, combined with the patentability requirements, can lead to the success of patenting food recipes in India. An example is the copyright awarded in India for the method of making delicate coconut alcohol through the fermentation of coconuts matured for seven months.
Emergence of ‘Recipe Infringement’ as a Concept
The evolving culinary creativity has given rise to the concept of ‘Recipe Infringement,’ a relatively recent notion spurred by the increasing demand for new and innovative recipes, especially with the rise in the number of professional chefs. This has led to the emergence of two distinct viewpoints within the culinary domain.
Divergent Perspectives on Recipe Ownership
These perspectives are:
1. Non-Safeguarding Philosophy
Some argue that recipes, being formulations of ingredients and techniques, cannot be safeguarded, and no individual or entity should claim ownership over them. This perspective advocates for the free sharing and dissemination of culinary ideas.
2. Property Rights Philosophy
In contrast, another perspective asserts that recipes should be treated as proprietary creations, akin to intellectual property rights. This viewpoint advocates for the establishment of measures to prevent the unauthorised use or replication of innovative recipes.
Contrary to the absence of specific safeguards for recipes, intellectual property rules offer a potential avenue for patenting food recipes in India. While recipes themselves may not be eligible for patent or trademark registration due to their nature as existing ideas or techniques and lack of distinct branding, certain aspects of intellectual property law may still provide protection for patenting food recipes in India.
Limitations of Traditional Safeguards
Recipes, being neither new ideas nor distinctive brand identifiers, pose challenges for traditional safeguards like patents or registrations. The conventional methods of protecting intellectual property may not be directly applicable to the dynamic and evolving world of culinary creations.
Securing Patent Protection for Copyrighted Material
Ensuring intellectual property protection through patenting in India involves a structured process. The following provides the key steps in obtaining a patent for safeguarding copyrighted material:
1. Conducting a Prior Art Search
The initial and critical step in process of patenting food recipes in India is conducting a comprehensive prior art search. This involves scouring patent repositories and non-patent publications to identify existing patents in the relevant sector. The objective is to confirm that the proposed invention does not infringe upon previously granted patents in the same domain.
2. Drafting the Provisional Patent
The second stage involves preparing the provisional patent application for patenting food recipes in India. This is accomplished through the online application known as Form 1. The application includes the submission of the Statement of Claim and the invention specification. Form 2 is utilised for detailing the patented invention, and a complete description is filed in the prescribed format upon the completion of the innovation.
3. Patent Release
Subsequent to the submission of the application, the complete specification is retrieved from the official Patents publication. Typically, it is published 18 months after the application date. However, if the petitioner desires an earlier publication, they can submit a request in Form 9. It’s important to note that the Statement of Claim may not be disclosed if it falls within Sections 3 and 5 criteria.
4. Examination of Statement of Claim
The Patent Office conducts an examination of the patent after its publication to assess the validity of the claims made in the description. Before this examination takes place, the petitioner must initiate the process by submitting a request for inspection, done through Form 18. For expedited evaluation, Form 18 (A) can be utilised. Following the examination, the Patent Office issues a first inspection report to the petitioner, outlining any concerns about why it may not be approved as a patent.
5. Responding to Examination Report
In response to the concerns raised in the inspection report, the petitioner prepares a comprehensive response to the Patent Office’s objections. This process involves addressing the arguments presented in the inspection report to ensure that the Statement of Claim aligns with the provisions of the Patents Act of 1970.
Case Analysis: Union of India vs. Novartis AG
Novartis AG, a prominent Swedish multinational pharmaceutical company, sought a patent from the Chennai Patent Office for its anti-cancer drug ‘Gleevec,’ derived from the crystalline beta form “Imatinib Mesylate.” This drug is utilised in the treatment of Chronic Myeloid Leukaemia and Gastrointestinal Stromal Tumours and holds trademarks in more than 35 countries.
Patent Application and Legislative Changes
Novartis initially filed a provisional patent application before the 2005 modification of the Patents Act. The pre-2005 amendment limited patent rights to the process or procedure rather than the finished product under Section 5. However, the 2005 amendment extended coverage to include the finished product.
Section 3(d) and Patent Denial
The patent application faced denial based on Section 3(d) of the Patents Act, which demands originality and non-obviousness. The rejection was grounded in the argument that the innovation had been disclosed and publicly known, rendering it ineligible.
Legal Proceedings
Novartis challenged the denial by filing a writ petition under Article 226 in the Madras High Court in 2006. The case was subsequently referred to the Intellectual Property Appellate Board by the Madras High Court. The IPAB rejected the application, asserting that the innovation did not meet the criteria outlined in Section 3(d) of the Patents Act.
In 2009, Novartis went to the Supreme Court under Article 136. The Supreme Court dismissed the petition, emphasising that the novel chemical’s efficacy was nearly identical to a previously known drug. Consequently, the innovation did not qualify for intellectual property protection under Section 3(d) of the Patents Act. This decision aimed to prevent the practice of evergreening, ensuring that pharmaceutical companies could not extend patents for already-patentable products.
Final Thoughts
Patenting food recipes in India presents a complex challenge due to the absence of specific statutory provisions. While the Patent Act of 1970 offers protection for inventions, the eligibility criteria, emphasising uniqueness, inventiveness, and industrial applicability, may be difficult to apply directly for patenting food recipes in India. Despite the potential protection under intellectual property laws, including trademarks, the nature of recipes as a combination of common ingredients and techniques poses unique hurdles. As India deal with the evolving sector of culinary innovation, a balanced approach is crucial to foster creativity while addressing the practical limitations in patenting food recipes in India.
