The food sector plays an essential role in the economies of many countries, accounting for multibillion-dollar revenues every year. For example, the food and beverage industry accounts for more than 30%, or $113 billion, of Australia's manufacturing output in 2021. With growing competition and reducing profit margins, innovation has become increasingly important to the industry. Recent years have seen celebrity chefs, fast food chains, and food and beverage companies developing new recipes and products to cater for ever-changing customer needs and tastes. These new products are diverse and for example include: new flavours (e.g., for "snacks"), alternative sugars, plant-based foods, and engineered meat products. Development of these new products is accompanied by an important question - how can the intellectual property (IP) rights associated with these new creations be protected from competitors?
In the following, we discuss the various IP rights available for the protection of new ingredients, new food-based products, improved production processes and apparatus, and food or beverage recipes.
A patent is a powerful form of IP protection that grants a patentee the exclusive rights to exploit, and to authorise other persons to exploit an invention. Like any other invention, new ingredients (i.e., "food additives"), foodstuffs, improved production processes and apparatus, and food/beverage recipes are patentable provided they meet several threshold requirements, including that the product or a process is new and inventive over what is already publicly known.1
New ingredients can be derived from a wide variety of sources, including synthetically prepared or derived from existing sources, such extracts from plants. The new compound(s) per se, and the use in a comestible product can be patentable, provided the hurdles of newness and inventiveness are met.
In terms of a food or beverage recipe, this can be understood as a list of ingredients with, or without preparation instructions. To obtain patent protection for a recipe, it is necessary to show that the food product is new and inventive over existing products. While it may be relatively easy to develop a new recipe with one or more known ingredients, it can be difficult to show that the combination of these ingredients is inventive. For example, it may be a matter of routine for a person skilled in the art (e.g., a chef or a food scientist) to combine known ingredients X + Y + Z, therefore rendering a recipe that combines these 3 ingredients uninventive. Further, the Australian Patents Act includes specific provisions preventing the patenting of an invention that is:
- a substance that is capable of being used as food and is a mere mixture of known ingredients, or
- a process producing such a substance by mere admixture2.
The Australian Examiner's Manual clarifies that a "mere mixture of known ingredients" is understood as "a mixture exhibiting only the aggregate of the known properties of the ingredients. [and that] not only must the ingredients be known, but the property which makes the ingredients useful for the purpose of the invention must also be known."3 In other words, the concept of "mere admixture" overlaps with inventive step. A straightforward example of a "mere admixture" is a simple recipe, such as a pancake batter containing an extract from blueberries. The blueberry extract is used in an established and predictable way to change the taste of the pancake, without providing any technical advantage over previously known pancakes.
It is also worth noting that the term "mixtures" may encompass not only powders or granules, either loosely or in compacted form (e.g., a tablet or pill), but also mixtures of liquids or gases and includes suspensions and solutions. Further, the Examiner's Manual notes that a substance is not excluded from being a mere admixture merely on the basis that the physical form of an ingredient has been changed, e.g., a sweet formed from a mixture of sugar and cellulose which has been turned hard by boiling.
On the other hand, patent protection can be obtained for a recipe if it can be shown that an ingredient or a combination of ingredients is new and has a surprising and/or unexpected technical effect on the resulting food product. Indeed, the Australian Patent Office granted over 1600 standard patents in relation to food products from 2017 to 2021 - an average of about one granted patent application per day, and the New Zealand Patent Office granted over 330 applications over the same time period. For example, in the granted Australian Patent No. 2018265322 claiming a chocolate product, a combination of chocolate and a dry powdered fermented plant product was held to be both novel and inventive, because the combination provides an unexpectedly good taste and mouthfeel. Other examples of patented food products include vegan meat, milk and other dairy products.
Furthermore, a process or a method of preparation of a food product can also be patentable if it is new and inventive over existing methods. For example, methods for processing cauliflower to prepare cauliflower rice are protected under granted Australian Patent No. 2018202550.
If a recipe does not meet patentability requirements, it may still be protected by other means, which discussed as follows.
If a recipe is not patentable, keeping the recipe a trade secret may be the optimal strategy for a business. A trade secret requires that the details of the recipe are maintained as confidential through appropriate confidentiality agreements with suppliers, distributors, and employees who are associated with the food, drink, and recipe. For example, it has been a strategically sound decision for Coca-Cola to keep its secret formula as a trade secret, which is locked away in a special vault in its headquarters. However, the value in the secret only persists for as long as the information remains confidential, and generally trade secrets do not protect inventions that competitors have been able to discover by reverse-engineering. Further, in some circumstances, keeping the information a trade secret may be preferred over patent protection, for example, when the required protection period is longer than the 20-year patent term. A brief guide to navigating the complexities of trade secrets vs patent protection can be found in our previous article (link).
A trade mark identifies the origin of a product, and it is advantageous to brand a food product and seek a trade mark registration for the brand. Examples of well-known brands relating to food products and drinks include "BIG MAC", "MCCHICKEN", "SPLENDA" and "SUNKIST". Brand owners can stop competitors if there is a likelihood of confusion with their trade mark, however a trade mark does not prevent others from copying and using the recipe.
If a food recipe is published, it will be protected automatically through copyright legislation. This prevents someone from reproducing the exact recipe and publishing/selling their own content containing the reproduction. Copyright does not protect ideas, but rather the material form (e.g., a book) in which the ideas are expressed. Therefore, copyright protection does not extend to prevent someone from using the published recipe to prepare food or beverage, giving it a new label or brand name, and advertising the food or drink as their own.
New ingredients for foods or beverages, foodstuff products, and improved production processes and apparatus may be protected by patents if they are novel and inventive in view of the prior art. Provided it meets the patentability requirements, a recipe can also be patentable. However, the best way to protect a recipe is usually as a trade secret.
The exclusive rights associated with IP, which may be applicable to many aspects of the food industry play an important role in obtaining and maintaining a competitive advantage. As in any other industry, protecting IP in the food service industry requires a coordinated strategy, and given these complexities the involvement of an IP professional is essential. Spruson & Ferguson attorneys are highly experienced in helping businesses navigate these matters.
1 Patents Act 1990 (Cth) s 18(1); Patents Act 2013 (NZ) s 14.
2 Patents Act 1990 (Cth) s 50.
3 Australian Patent Manual of Practice and Procedure section 188.8.131.52 "Food or Medicines, Being Mere Admixtures"; and section 184.108.40.206.3 "Admixtures"
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.