patenting of recipes

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Patenting Of

Sinduja Amudanathan

Trademarks Department



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INTRODUCTION

A recipe is a set of instructions that describes how to prepare or make something, especially a culinary dish. It is also used in medicine or in information technology (user acceptance). A doctor will usually begin a prescription with recipe, usually abbreviated to Rx or an equivalent symbol. Consider that people have been mixing together ingredients to produce different food products since the dawn of humanity-in fact, some of the earliest known examples of written language are food recipes. These days, most "new" recipes are merely combinations of known ingredients in varying amounts, separate discoveries of pre-existing recipes, or variations on known recipes. Even if a previous version of a recipe cannot be found, a "new" recipe could still be considered obvious.



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Trademarks Trademarks, protect only

names and brands, and not the products to which they are attached. This is why for every Cronut™ there will be a thousand completely legal wownuts, zonuts and doissants that provide a similar experience, without the hours of queuing. foods do not qualify for trademark as they do not distinguish your goods from another company’s goods

Recipes and Intellectual Property

COPYRIGHT Take copyright. A recipe when published

in a book or on a blog will create a copyrighted work, but that applies only to the written expression of a recipe – not to the idea or taste of it. As far as food is concerned, copyright is a complex area as sometimes a list of ingredients or a specific method of cooking may not be enough to obtain copyright protection. However, a cook book containing recipes can be copyright but not the recipes itself.



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Trade SecretsBroadly speaking, any confidential commercial information which gives a competitive edge may be considered as a trade secret. Within the food industry this includes recipes, formulae, manufacturing processes and, potentially, sales and distribution methods. Trade secrets are protected without registration and thus enjoy protection for an unlimited period of time

Design RightsDesign rights give protection to existing designs such as lines, shapes, textures or materials. It is often used with food stuffs and covers the making, using, putting on to the market, exporting and importing of the product.



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The concept of food patenting is a relatively new phenomenon. Patents cover a broad range of areas within the food sector; everything from the composition of the food itself, to the actual process of making the food. It is possible to patent new ingredients, new products, packaging, processing methods and novel applications. Innovation in food technology often results in new ingredients and products which may be patented. A food business should seek to register a patent in circumstances where, for example, the packaging features provide storage advantages, or improves delivery to the consumer in a novel fashion and involves an inventive step in the process. Likewise, patents are useful if the production method for creating food is unique as this creates difficulties for competitors trying to imitate your product. Patents in this field ensure inventions and ideas are protected long term so the original inventor has the opportunity to recoup the initial financial investments

Patents



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In order to be patentable, a recipe must meet all of the patentability requirements set forth in the U.S. Patent Act. For an invention to be patentable, it must:

• Be considered patentable subject matter,• Be useful,• Be novel (new), and• Be no obvious.

Patentable Subject Matter:- “Whoever invents or discovers any new and useful process, machine,

manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title. “

• Recipe contains a Process” and a “composition of matter.”• composition of matter- Ingredients • process- step by step directions

Patentable Subject Mater and RECIPE



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A food product or recipe typically has three components: 1. A list of ingredients, 2. Instructions on how to combine and 3. Cook the final product resulting from the first two components.

In terms of patentable subject matter, 1. A list of ingredients composition of matter and/or manufacture2. Food product is produced a process. 3. So the short answer is yes, recipes are eligible for patent protection

because they potentially contain patentable subject matter.

(Therefore, a recipe can be considered patentable subject matterand we can move along to the next requirement.)



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Useful This is a relatively simple burden to meet

and does not warrant much discussion here. The term “useful” simply means that the subject matter has a useful purpose and includes the element of operativeness. In other words, the invention must be able to perform the intended purpose in order for it to be useful. Recipes will easily meet this requirement, as they are “operative” as defined here.

Novelty: For a recipe to be novel, it must be totally unique. You may have created the best tasting barbecue sauce in the history of time, but if a previous recipe somewhere in existence outlines a similar process and ingredient combination, your application will probably be rejected.

Obviousness:Most applications for utility patents are rejected based on this criterion. For a recipe to be "not obvious", it must yield a final product that is unexpected in some way. In other words, if I combine peanut butter and chocolate and get a chocolate peanut butter candy, that would be considered a pretty obvious result. However, if I were to combine them in such a way, maybe by adding in special ingredients or by using a newly invented baking process that produced unexpected results, I just might have a case for a patent. However, even in that case, I'd most likely be patenting the new process, not the list of ingredients themselves.



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Indian Patent Law

Patent Amendment 2005 of the Indian Patent Act 1970, as we all know, has introduced product patent protection for food, pharma and chemical inventions. If we look at the Indian Patent Database, we will find a number of granted patents and hundreds of patent applications on one or other types of food compositions No matter whether the recipe is for humans or pets, it passes the utility criteria. And the more novel and non-obvious the composition is, of course, the stronger would be the chances of getting a patent.

A recipe is a set of instructions for preparing a particular dish, in essence it is a mixture of a number of ingredients and a process for preparing them.

Section 3 (e) of the Patent Act states that ‘mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance’ cannot be protected as an invention. However, there are a number of patents granted food compositions and methods/process of preparation but not food recipes per se.

contd….



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Two Steps Involved:• 1. An invention have to overcome the three-step test of novelty,

inventiveness and usefulness.

• 2. The recipe or food composition doesn’t fall under the scope of Section 3 (e) is secondary.

STEPS INVOLVED



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Patentability Of food in India

Food recipes are definitely patentable in India, though keeping in mind the below:

1.Mere admixture of known ingredients. (The recipe should not be within an ambit of Section 3 (e))2.he recipe must involve a special feature, an inventive step (for example, achievement of unexpected results such as fat free, sugarless yet retaining texture and flavor, addition of certain off shelf ingredients such as antioxidants, having nutritional/therapeutic value addition over similar known food products and very importantly new process steps, namely, heating for a particular time in a particular temperature range to get an unexpected result which would not have been obvious for any skilled artisan to achieve in view of prior art, other defining process steps can be mixing, freezing, fermentation, preservation, aging, grinding etc.)3.A process claim for a new recipe would have a better success rate of obtaining a patent than composition, (again depending on inventiveness of the composition itself) but at the same time enforceability of the protected IP should be considered and balanced out.4.A skillfully drafted patent application claiming the elements intelligently.5.If a recipe does not meet the patentability criteria, there are always options such as copyrights and Trade secret available to get a certain level of protection



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The United States Patent and Trademark Office, or USPTO, is responsible for reviewing patent applications of new inventions. If you create a new food product that you intend to sell, obtaining a patent is beneficial since it provides you with legal protection in the event another person or organization tries to profit from your food invention. However, preparing your non-provisional utility patent application requires a number of documents that can take some time to prepare.

• Step 1Search the USPTO database for existing patents. The USPTO online

database allows you to search through existing food patents using a number of search parameters, such as patent number, date of issue and product descriptions. Prior to filing a patent application, you must insure that your food product is unique, meaning that a patent doesn’t exist for the same product.

Contd…

Steps for filing patent application in US for RECIPES:-



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• Step 2Prepare the utility patent application payment form. When filling out the

payment form on Form PTO/SB/05, you must include your full name, the title of the food product you seek patent protection for and a list of all documents you are submitting with the application.

• Step 3Draft a written description of the food product. Your description must

include the information for each of the 13 headings the USPTO requires under the specifications section in its Guide to Filing a Utility Patent Application. Write “not applicable” under the headings that aren’t relevant to your food product.

• Step 4Draw pictures of the food product in black and white. Multiple drawings,

each depicting a different angle or view of the food product, are necessary if you’re unable to include all distinguishing characteristics in a single drawing. Each view must be appearing on a separate page.

contd….

DATA EXCLUSIVITY (DE)



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• Step 5Fill out an oath or declaration form. The USPTO provides standard oath

and declaration forms on its website for download. Regardless of the form you choose, you must report the food product’s title, your address and country of citizenship and the names of all inventors on it.

• Step 6Prepare a fee transmittal form. Obtain Form PTO/SB/17 from the USPTO

website and follow the instructions to calculate the appropriate patent application fee. The USPTO requires that you make payment by check or credit card at the time of filing your patent application.

• Step 7File your food product patent application. You can submit all patent

application materials electronically using the USPTO’s EFS-Web service. The USPTO encourages electronic applications and increases the fee if you decide to file on paper. If you prefer to file by mail, send all your paperwork to the address listed on the application.



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• POP ROCKThe concept was patented by General Foods research

chemist William A. Mitchell in 1957.[1] The candy was first offered to the public in 1975. In 1983, General Foods withdrew the product owing to its lack of success in the marketplace and to its relatively short shelf life.Distribution was initially controlled to ensure freshness; but with its increasing popularity, unauthorized redistribution from market to market resulted in out-of-date product reaching consumers. After that, Kraft Foods licensed the Pop Rocks brand to Zeta Espacial S.A. who continued manufacturing the product under Kraft's license. Eventually Zeta Espacial S.A. became the brand's owner and sole manufacturer. Pop Rocks is distributed in the U.S. by Pop Rocks Inc. (Atlanta, Georgia) and by Zeta Espacial S.A. (Barcelona, Spain) in the rest of the world. Zeta Espacial S.A. also sells popping candy internationally under other brands including Peta Zetas, Fizz Wiz and Magic Gum.

PATENTED FOOD



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A PROCESS FOR THE PREPARATION OF DEEP FAT FRIED POTATO CHIPS

• This invention relates to a process for the preparation of deep fried foods, forge. potato chips comprising slicing of cleaned potatoes, blanching slices potato in 2'/i calcium chloride solution and 0.5-1 /. sodium acid pyrophosphate for 3-5 mins frying said blanched potato slice and then treating the same with a 5-6 . solution of low methyl content pectin at room temperature, dipping/soaking said slices in 0.25-0.3'/ carboy methyl cellulose (CMC), drying again the treated slice of potatoes and then subjecting the same to the step of deep fat frying, adding known flavor material and spices to said slices during the step of deep fat frying in order to prepare the thin product.



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A WHEAT CHOCOLATE BAR FOR SUSTAINED ENERGY RELEASE

• This invention relates to a wheat based chocolate bar comprising 20 to 32% of carbohydrate, 5 to 18% of dry fruits and/or nuts, 5 to 15% of milk powder, 4 to 12% of sweetener, 10 to 22% of glucose, 0.5 to 3.5% of cocoa powder, 20 to 38% of cocoa butter/fat, 0.3 to 0.8% of emulsifier, 3 to 8% of glycon glycerin.

• This invention relates to a process for preparation of wheat based choclate bar specifically, but without implying any limitation thereto, as pre-game and game-period snack for sports persons.



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A CHOCOLATE FOOD PRODUCT OR INGREDIENT AND THE METHOD OF MAKING SAID FOOD PRODUCT OR INGREDIENT

• The invention provides novel means and methods for manipulating cocoa and milk ingredients, Tor example, tu produce edible oil-iri-wnter suspensions and optionally drying the suspensions to reduce the moisture or water activity level. In one embodiment, cocoa products am used to produce a gel network formed by cocoa starches and/or proteins. The suspension is formed with milk proteins and cocoa solids and also comprises crystallized cocoa butter as a dispersed component, and water or skim milk as the continuous phase or aqueous phase, and the suspension is optionally dried to reduce the moisture content and/or manipulate the final texture or characteristics. The compositions, products, and ingredients possible according to the invention provide nove! methods and components for low or reduced calorie or sugar free chocolate products or ingredients having the same cocoa content as conventional tjhocoiale and/or falling within the standard of identity for chocolate products. In addition, the production and packaging options far chocolate products arc expanded by the use of the invention as the viscosity of the chocolate product or ingredient can be varied easily without specific reliance on cocoa butler contend



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FRONT PAGE DRAWINGS

WRITTEN DESCRIPTION CLAIMS

To help show the similarity between a cookbook recipe and a patent, the above fictional patent is based upon an imagined caramel chip cookie recipe (please don’t actually make the recipe, it is for teaching purposes only). Not all utility patents look just like this patent, which was written specifically for this guide, however most have the same basic four parts (some don’t have drawings).

Recipe Patent Claim



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1. By gaining patent protection, our inventor will have a monopoly over the processes used to produce carrot flavoured sports drinks (and potentially all root vegetable flavoured sports drinks depending on the broadness of patent protection gained). If the product is a success, the patent holder has a number of options as to how they can proceed:

2. The patented technology can be licensed to third parties to enable them to make their own carrot sports drinks using the patented process. In return, the patent holder can receive royalties or set payments for the use of the technology which will provide valuable income.

3. The patent holder may use the technology themselves and gain a strong market monopoly as the sole supplier of carrot sports drinks. If necessary, the patent can be enforced against competitors trying to use the same process.

4. The patent can be sold outright to a third party for a set price, allowing the new owner to use the patent and the associated rights at their discretion.

What are the benefits in gaining patent protection



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CONCLUSION

What that statute is basically saying is that if the invention does not already exist, then it may be patentable. If there your recipe is found in any prior art, you will not meet the elements of this requirement, unless there are differences that may be non obvious.Going hand in hand with the novelty requirement is that of non-obviousness. In order for an invention to be patentable, it must also be non obvious over the prior art. The test used is here is whether or not the invention to be patented would have been obvious “to one of ordinary skill in the art.” The kicker here is that a Patent Examiner will not look at each prior art item individually, but may combine different art to read your invention as obvious. Being that recipes are mostly a combinations of known ingredients n specified amounts or variations of known recipes, the result you create may be found to be obvious to a person having ordinary skill in the culinary arts.

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