You work hard, invest your time and develop a recipe. The moment you Share on electronic platform, the magpie stealing your ideas will just press ctrl+C (copy) on your recipe and happily press ctrl+V (Paste) on his timeline without giving you credit for your hard work. You feel angry, make noise on social media and then helplessly keep watching this drama. Can your hard worked recipes be Patented or Copyrighted?
Here is what you need to know. First let’s examine about patent.
Patents are granted for any “New & Useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”. Your food product or recipe consists of three components (1) List of Ingredients, (2) Instructions on how to combine and cook them, and (3) the final product resulting from the first two components.
Now, if we speak in the language of patent, then a list of ingredients can fall under the headings of a composition of matter and / or manufacture, and the way the food product is combined or cooked can fall under the process. Therefore, YES recipes are eligible for patent protection because they potentially contain patentable subject matter.
But hold on. Your recipe should be “Novel” and “Non Obvious” enabling it to be patented. Just incremental improvement in the existing recipes will not become eligible for grant of patent. Your recipe should have not existed before.
Human civilization have been mixing various ingredients to produce different food products since time unknown and therefore most of the recipes are merely combinations of known ingredients in varying amounts.
In other words, a final food product typically is nothing more than the expected sum total of individual components. For e.g. the more sugar is added in any dish, the sweeter the finished dish is expected to be.
But if the combination of ingredients used in your recipe or the way they are processed, results in a food product totally unexpected IT CAN BE PATENTABLE.
Now according to Section 3(e) of the Patent Amendment 2005 of the Indian Patent Act, 1970, the recipe should not be a “Mere admixture of substances resulting in aggregation of properties of the components” which means merely taking the food items off the shelf and mixing them without doing anything special to the process will fail the “Inventive or Novel” step of patent law.
For example, if your recipe have some inventive feature or unexpected effect such as cholesterol free without loss of flavour or texture or mixing the ingredients, it clears the bar of non obviousness requirement and both composition claim and the proportional ranges can be patentable.
The process of preparing recipe involves steps like heating, mixing, frying, baking, fermentation, grinding, stirring, whipping, freezing, melting, molting, grilling, aging and so on. These steps if found to be novel, then such process can be patented.
If the use of specific natural ingredient enhances the shelf-life or preservability of your recipe comparable to synthetic preservative, or gives therapeutic relief in some disease, the chances of getting it patented will be brighter.
But, if your recipe does not qualify for Patent, can you copyright your recipe? Well, Copyright law protects the authors or creators of original work. So could a recipe be such a work?
The answer is “Although recipes can contain a lot of text and information, in principle they cant be protected by copyright since a recipe only contains the name of the ingredients with the right proportions and then some instructions how to make it. Such an instructions are neither original nor individual and therefore does not quality as a work of art.” Therefore, Copyright law will only be applicable if your recipe incorporates highly creative features that are separable (either physically or conceptually) from the food’s functional features.