How to get a Food Item Patented in India?

Last Updated at: Jan 07, 2021
Food Item Patented

When we think of patents, we think of cutting edge technology. However, that is not necessarily the case. Patents can be issued for very low-tech or non-tech developments as well. Before we study the landscape of patents on food in India, let’s briefly look at patents and their benefits. Let’s see how to get a food item patented in India.

Patents and their benefits

A patent is a statutory right given to its applicant by a government for a new product or process. It is a territorial right. This means that a patent granted in India is restricted to the country’s boundaries. It protects intellectual property for 20 years. In this time, no one else can manufacture the product or replicate the technology patented. Users need to pay royalties to the patent holder for the use of their product or method. After 20 years, the product or technology goes public.

Key criteria for a patent on food recipe

The concept of patents may seem strange when we talk about food. However, entities do patent a food product. In India, ICAR and CSIR are prominent entities that have patented intellectual assets in the food sciences sector. But can one patent a food recipe? The short answer is ‘Yes.’

There is a small distinction which is important to highlight here. A patent on food recipe can be in the form of cookbooks. Additionally, this would come under the purview of literary works. Such a patent would allow the author right on the published work. For our purpose, we are looking at the way to patent a food recipe. Moreover, this patent would disallow others to copy the recipe instead of just barring them from publishing it. Further, it is this kind of patent which has kept the recipe of products like Coca Cola a secret.

Patent Amendment 2005 of the Indian Patent Act, 1970 allowed the product patent protection for food, chemical and pharmaceutical inventions. Further, getting a patent on a food product can be a little tricky. There are three important criteria to be met before an idea is considered worthy of a patent:

  • Novelty – The recipe needs to have an element of ‘newness,’ not just an extension of an older method.
  • Non-obviousness – Just mixing raw food materials which produce an obvious result would disqualify a recipe from the patent.
  • Industrial application – For food, this criterion means the recipe should be useful for either humans or animals.

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Important details to note while applying for a patent on food recipe

According to the Indian Patent Office:

  • An invention must involve an inventive step. 
  • Its novelty refers to not being published in India or anywhere else.
  • It should not be claimed in any specification in India.

For people looking to patent a food recipe, a particular aspect to take care of relates to an inventive step. The Indian Patent Office states that an inventive step is one that “makes the invention not obvious to a person skilled in the art.

An applicant looking to patent a food recipe also needs to ensure that it does not violate Section 3(e) of the Indian Patent Act, 1970. Moreover, the section says that the following cannot be patented:

“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 substances.”

This means that a product or process which just mixes ingredients producing an obvious result cannot be patented.

Examples of a patent on food recipe

It would be useful to give examples of some patents granted on food recipes in India:

  • Patent No. 192889 – A process for the preparation of deep fat fried potato chips
  • Patent No. 250544 – Improved process for tea manufacture
  • Patent No. 257367 – Process for producing baked potato slices with an expanded texture
  • Patent No. 258480 – A chocolate food product or ingredient and the method of making said food product or ingredient

The titles may seem quite staid. However, all these patents pass the aforementioned criteria and details.

Experts believe that in India, process patent claims tend to fare better than composition claims. For instance, an accepted patent application in India is in the process of preparing a soy curd. It involves the following steps:

  • selecting soybean
  • soaking the soybean
  • grinding and preparation of soy milk
  • making of soy curd for the fermentation
  • final processing of soy curd

Applying for a patent on a food

The Indian Patent Office suggests applicants apply for a patent in an office in which his domicile lies. Documents can be filed online, via post or by hand.

Once an applicant files an application, the information is published after 18 months. Others are given a window to oppose such publication. Further, an examination then takes place which results in either grant or refusal of a patent. If someone opposes this grant of a patent, the Controller takes a decision on the same.