India: IP-tite For Cooking

Last Updated: 25 August 2015
Article by Divya Srinivasan

Food is not only a means for survival for all life cycles, but also a fascination for food enthusiasts. These days the television and internet is flooded with respective countries' "Top Chef" competitions, 24x7 cooking channels like 'Food Food' and other cooking/travel shows that involve cooking as well as cooking presentation. Chefs, Restaurateurs and Celebrities, who have propelled successful culinary careers at par with celebrities of film and television have become common household names. Moreover they also give out detailed recipes of the food prepared by them on the show or from their published books. As compared to celebrities, chefs are creators, and when presenting on television are more than just characters from a script further shaped by an actor. Not only do they create recipes and food dishes, they also deign menus, cuisines and build restaurant kingdoms. Hence it would be safe to say that celebrity chefs/restaurateurs symbolize the traits of an actor, screenwriter, author, entrepreneur all in one. Further discussed below is IP protection that is assured to cover recipes.

Copyright

In India copyrightability of individual recipes has not been decided by Courts. While there are copyrights owned by publishers in cookbooks that come under literary works, how much copyright law is protecting recipes within these books is a disputed matter. Cooking may be a skill and an art, and may be presented creatively, but copyright law protects original, creative expressions that are fixed in a tangible medium. Any mediocre story, with a fathomable ending may be creative and original enough provided it is not copied or derived from an existing work. Considering food is always in demand, exquisite and delicious more so, people with good recipes may consider publishing the same anticipating profits from their talent. But protection available to recipes under copyright law is narrow. This is because as per law an individual recipe lacks sufficient creativity to qualify for a copyright protection not being considered as a creative expression of the sort that copyright law is designated to protect.

Literary Works is enshrined in Section 2 (o) under the Copyright Act, 1957 (hereinafter the Act).[i] Although literary works have not been explicitly defined in the Act, but the clause states 'includes tables as well as compilations', apart from other literary works qualifying for protection. A literary work need not be of literary quality. Even something like telephone directories, railway guides, or even question papers, as banal as they sound, qualify as literary works, if sufficient effort has been put into them for compiling it, so as to give it an original and new look, feel and character. It is well settled that in order to secure copyright protection, it is not pertinent that any literary merit has to exist. If one has put in labour and hard work in expending that work, then it has been held to be sufficient to claim copyright in the work ultimately produced. The same was held in University of London Press Ltd. v University Tutorial Press Ltd.,[ii] which is one of the most landmark decisions bringing about the "Sweat of Brow" Doctrine under UK copyright law, that has been culled into various Indian precedents as well, wherein Justice Peterson stated that "It may be difficult to define 'literary work', as used in his Act, but it seems to me plain that it is not confined to 'literary work' in the sense in which the phrase is applied, for instance, to Meredith's novels and the writings of Robert Louis Stevenson. In speaking of such writings, as literary works, one thinks of the quality, the style, and the literary finish which they exhibit. In my view the words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word 'literary' seems to be used in a sense, somewhat similar to the use of the word 'literature' in political or electioneering literature, and refers to written or printed matter."[iii] 

In view of the above, recipes should be copyrightable and food could be put into the subset of an artistic work; in lieu of its presentation and recognize recipe as literary works. If the latter is even made possible via judicial pronouncements then it would be the most proficient way to fit in culinary flair into the space of copyright. Even though the Act does not explicitly mention plausible protection that could be accorded to recipes, but it is not wholly denying either that it could not fit into the 'subject matter' of copyright. Glancing at any recipe, it is evident that they are based on expressions of words and numbers. Additionally, the landscape of contemporary culinary showbiz places recipes in arrangements or factual articles suitable to the literary works definition; i.e., recipes are most frequently exemplified in text by way of print or websites, or by film of aired cooking shows.

Patents

A mere look at the Indian patent database will show that innumerous granted patents as well as patent applications that have claimed or are claiming one or other types of food compositions. This is because of the Patent Amendment Act 2005 under the aegis of the Indian Patent Act 1970 (hereinafter the Act), which introduced product patent protection for food, pharma and chemical innovations. When speaking especially about food recipes, it could be a tricky affair to patent food recipes irrespective of how delicious or tasty the food is or as to how much the creator is fascinated by it as it has to meet the prerequisites of patentability; Novel (New), Non Obvious (Inventive Step) and Industriousness (Usefulness/Utility). The utility criterion in the patent application is met once the food contains or is of a nutritional value regardless of human or animal consumption. Finally the composition of the ingredients should be novel and non-obvious, thereby increasing the chances of getting a patent.

According to Section 3 (e) of the Act, which enshrines inventions that are not patentable,[iv] any recipe should not be a "mere admixture of substances resulting in aggregation of properties of the components." This means that merely taking food items off the rack, like garlic or ginger, for instance, and mixing them without doing anything exceptional to the process, misses the mark of the non-obviousness test. If an individual is using certain ingredients that have never been combined before, then the first requisite of non-obviousness is passed. Almost all food patents claim both composition and processes for making the same, but process claims on recipes have a favourable outcome from the perspective of procuring patents as compared to composition claims in India. For example, McCain Foods has an international process patent on ready to cook frozen French fries that are very popular snack items today. If the process of creation of a food product encompasses steaming, heating, mixing, frying, baking, fermentation, grinding, stirring, whipping, freezing, melting, malting, grilling, aging and so on, then one or more of these steps are processes, which if found to be novel and involving an inventive step, are essential to the invention and can be patented. One of the granted patents in India claims a process for preparing a soy curd comprising the steps of selecting soy bean, soaking the soy bean, grinding and preparation of soy milk, making of soy curd for the fermentation, and final processing of soy curd.[v] Intrinsically all recipes consist of a nutritive arrangement fit for human consumption, and are qualified of being used in an industry; the efficacy remaining assumed unless it provides some other value, like for example healing relief or curing of ailments, thereby giving an easier chance at being patented.

Conclusion

A good set of process claims in patent applications is necessary for getting a recipe patent. Various constraints, like quantities, cooking or mixing intervals, ingredients et al, should be claimed in a wide sense in order to increase the potential of getting a patent on the recipe as well as decreasing the chances of infringing another patent. If a recipe does not meet the considerations for patentability then copyright is available to get a certain level of protection, i.e. recipe instructions in the form of a book or any compilation constitute the subject matter of a copyright.


[i]  Section 2 (o), Copyright Act, 1957; "Literary Work" includes tables and compilations.

[ii] (1916) 2 Ch 601.

[iii] Ibid.

[iv] Section 3: What are not inventions.—The following are not inventions within the meaning of this Act,—
(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

[v] Patent No. 257516, Indian Patent Application Number 590/DEL/2004, granted on 9th October 2013, available at: http://www.allindiapatents.com, last visited on 19th August 2015.

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