Patenting a Food Recipe?

 
First Publication Date: 14th January 2010
 
Most of us, when we think about patents, we tend to associate patents with “high-tech” technological innovations. However, truth be told, sometimes patent protection can be easily extended to protect, as many may call, not so high-tech innovations as well.
We had blogged earlier about, whether inventions related to method of massaging can be patented. A comment made on that blog post raises an interesting question, and is the focal point of this post.
The question is: Can food recipes be patent protected?
This question mainly arises because there could be doubt about whether or not, food recipe is a patentable subject matter. To answer that, we need to look at list of exclusions provided in the patent act. Indian Patent Act provides a list of exclusions in section 3. In my opinion, inventions related to food recipe do not fall under the scope of any of the exclusions provided in section 3. However, one of the exclusions that could apply in some cases is provided under section 3(e), which is recited verbatim:
“a substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing the same”

In my opinion, the above exclusion may be applicable in cases where the ingredients lack synergy, for example, if my recipe is eating chips with tomato ketchup, then it can be construed as a mere admixture. On the other hand, if I have a recipe for fruit jam, then that recipe may not be considered as a mere admixture, since ingredients produce a synergistic effect, which may not merely result in aggregation of the properties of the ingredients.
Further, it may be noted that all three major patent classification systems, US patent classification, IPC, and ECLA recognize innovations related to food, and have classifications corresponding to the same. The broad
patent classes are as follows:
US patent classification:

• 426: FOOD OR EDIBLE MATERIAL: PROCESSES, COMPOSITIONS, AND PRODUCTS

IPC and ECLA

• A23: Human Necessities – Foods or foodstuffs; their treatment, not covered by other classes

I did a quick search just to provide a couple of examples of granted patents corresponding to the topic of discussion, and the same are listed below:

• EP0617899 – A fresh, creamy, fruit-containing spread and process for preparing the same
• EP1106082 – Creamy cooked food product
• US7264835 – Food product and method of preparation   
• US6833152 – Soybean jam 

Having spoken about the subject matter concerning innovations corresponding to food recipe, one must note that, the remaining patentability requirements have to be satisfied to obtain patent protection, as is the case with any other invention.