In Australia, a patent application for a typical recipe is likely to be refused by the Patent Office on the basis that it lacks an inventive step or comprises excluded subject matter.
The Patents Act 1990 gives the Commissioner the authority to refuse a patent application on the grounds that it is for the excluded subject matter. In particular, section 50 of the Patents Act 1990 excludes substances capable of being used as a food or medicine which are a mere mixture of known ingredients, or processes producing such a substance by mere admixture.
For example, a sweet formed from a mixture of sugar and cellulose which has been turned hard by boiling and a pizza dough containing herbs in the dough are both considered “a mere admixture”.
Essentially, this is because these are known ingredients used for their known properties.
However, if the inclusion of an ingredient in a recipe provides a technical advantage over existing recipes, or provides an unexpected functional benefit, then this may be sufficient to make the invention patentable.
For example, foods which have improved texture for use by people with dysphagia may be patentable. Likewise, a combination of ingredients that can be used in a pharmaceutical product that interact synergistically, may be patentable.
Having said that, there are other ways to protect the intellectual property in your recipe.
Copyright can be used to protect aspects of your recipe as a literary or artistic work. This literary work can include the written recipe, and the artistic work can include associated videos or audio clips, photographs or illustrations.
Others wanting to reproduce your recipe will need to seek your permission before copying your literary or artistic works.
However, the ingredients and the cooking methods themselves are not considered works protectable by copyright, and other people can use your ingredients and cooking methods without infringing your copyright. In addition, you cannot stop people from following your recipe, or from recording the ingredients and cooking methods after having viewed your literary work.
You may be able to protect your recipe as a trade secret. Trade secrets, such as the COCA COLA® drink recipe and KFC® blend of herbs and spices, are classic trade secrets used to protect the confidential or proprietary knowledge of these businesses.
However, to protect a recipe as a trade secret, you must be able to keep the recipe a secret. Essentially this involves limiting access to the recipe, ensuring employee agreements contain suitable intellectual property and confidentiality clauses and using contracts and non-disclosure agreements with other parties who need to or have access to the recipe.
While there is legal recourse available if someone steals your recipe, once your recipe is publicly available it loses its trade secret protection.
While obtaining patent protection for your recipe may be difficult, it is not necessarily impossible. There are also other avenues to protect your recipe which should be considered as part of your IP protection strategy.
Not sure if this applies to you? Contact Kings today!
Kings Patent and Trade Marks Attorneys are experts in patents law and have the skill and experience to help you with any question you may have. Contact us today so we can assist you the best we can.