Can a new food recipe be trademarked, copyrighted or patented?

QUESTION:

If someone makes a cooked food, something that is new in its kind, it is unique, prepared with a new recipe, is it possible to make an IPR on this new and unique recipe process, if so in what way this can be protected?

ANSWER:

As you would all know, cooking food is not as easy as eating it. There are various IPR issues that arise in the process of creating food items and recipes:

Firstly, any recipe can be protected by a copyright because you are expressing the manner in which food has to be prepared and the manner in which it is expressed can be protected by copyright, but copyright is a counter intuitive protection for recipes because the copyright can only protect the manner in which you can express a recipe and it can protect people from copying and circulating and sharing the recipe, it does not stop the person from making the entire product, say if it is a cup of tea, then the process of making it if you have described it in text it is protected by a copyright only to the extent that somebody cannot copy and share your recipe, your special recipe, which we assume is original, but nothing stops a person from making the demonstration on how to make tea or nothing stops the person from selling or giving away the tea, because the tea which is the end product is not protected by the recipe. That is the limitation of copyright.

Secondly, when it comes to cooking, the other form of protection open because copyright is out of the door, as a form of protection open is to patent the recipe, you can either file a process patent for the process of making the food or you could have a product patent on the end food product itself. The difficulty in protecting food or a recipe for a food by a patent is that there is quite a lot of prior art processes involved. Roasting, blending, cutting, frying, mixing, all these things are already there in the prior art. So when you come up with a new process of making food, many a times the processes that you have used would be in the public domain and that will cause you difficulties in protecting it by way of a patent.

Now as you know, a patent requires three things, it has to be new, the process or the product has to be new, the process or the product has to involve an inventive step, in the sense that it should not be obvious to a person skilled in the art, and when it comes to cooking a person’s skill in the art is a person who can make food, which is like most of us, especially when you have cooks and chefs around. So there is quite a lot of domain knowledge with a person skilled in the art, it is going to be much difficult for recipes to be patented.

And the third requirement is that it should satisfy utility. It should have some kind of industrial application. Now despite the difficulty, there are quite a lot of food industry patents. The food industry patents form into 2 categories, one they cover the formula of the food, especially when it comes to nutritional supplements, you find that there are quite a lot of new nutritional supplements that are coming up which is basically food and which is covered by a unique formula. The quantity or the process by which it is made, or the quantity by which it is blended and mixed is covered by a patent. The unique formula can be patented. The other type of patents that we find in the food industry are equipment patents, a unique coffee blender or a Dosa maker or various equipment that you could use in preparing food. The equipment would cover the process of making food and also the product itself in the sense that the equipment is a product.

Now there are certain risks in filing a patent for a food recipe. If it is a very unique recipe then you stand the danger of losing out this right in a matter of 20 years, because once the patent expires the formula falls into the public domain and anybody can use it. Now this is one of the reasons why some of the best know recipes for instance the recipe for Coca-Cola is not protected by a patent rather it is protected as a trade secret.

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