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.


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.


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.


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:, last visited on 19th August 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Divya Srinivasan
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.