Basics: What’s The Secret Ingredient?

by Koka Tarini Siddhartha

Some of the few things we have no dearth of in the twenty-first century are food blogs and cooking shows or competitions. You can be sure to find either MasterChef, Jamie’s 30-Minute Meals, Nigella Bites or My Kitchen Rules on television at around 9 p.m. every night, with cooking enthusiasts jotting down recipes in their notepads.

In this post, we consider whether these recipes are really free for anyone to copy and use. Aren’t they protected by intellectual property laws as well? Let’s take a look at recipes in relation to copyrights, patents and trade secrets to determine the most suitable legal route one can adopt.

Surely recipes are protected under copyright laws, right?

Actually, they aren’t. If all recipes were copyrightable, only a select few would be legally allowed to cook, while others would have to obtain licenses to cook for survival. This would be absurd and impractical. Copyright protection extends to original literary, artistic, dramatic and musical work while ideas, procedures, concepts and discoveries (amongst others) cannot be protected (more on this here).

Any given recipe lists the ingredients to be used and the process to be followed to make a dish. Since a recipe is, in essence, a literary work, there is a copyright over the text, but not over the final outcome of combining and processing the ingredients (the dish itself). Copyright laws only protect against the unlicensed and verbatim copying of the recipe itself. A recipe book as a whole (text plus photographs) is copyrightable, but that is as far as  copyright protection pertaining to recipes extends.

Since copyright laws do not protect recipes, does this mean all recipes are in the public domain, free for anyone to use?

Intellectual property rights are a collection of rights which not only includes copyrights but patents, trademarks, design rights, and trade secrets too. Just because copyright offers minimal and insufficient protection in this case doesn’t mean there aren’t other alternatives. With respect to recipes, two of the commonly chosen legal recourses for protection are patents and trade secrets.

Don’t patents protect inventions only? How can a recipe be patented?

An invention can be patented if the subject matter is patentable, novel and non-obvious, and involves an inventive step (more on this here). Applying these conditions to recipes, the conclusion drawn across jurisdictions, including in the United States and India, is that food can be patented especially when the composition of ingredients and process is novel and non-obvious to the experts in the industry. Mixing peanut butter with chocolate is not novel as several companies already manufacture chocolate peanut butter.

Authorities granting patents also require the invention to be useful. The United States Patent and Trademark Office (USPTO) and the Indian Patent Office have granted patents over recipes which substitute for fat and egg yolks in baked products, while allowing the product to continue to taste the same. Another patented product that may ring a bell is Bubba Q’s De-Boned Baby Back Rib Steak, wherein a slab of steak is de-boned without distorting the meat (Bubba Q managed to convince Daymond John to invest in his business on Shark Tank).

Recipe patents are notably granted over inventions resulting from scientific/laboratory intensive procedures. Many food connoisseurs find the idea of patenting recipes detrimental to the industry, finding it to counter experimentation and stunt the industry’s growth.

For example, the infamous Heston Blumenthal is known for his show Heston’s Fantastical Food where he creates supersized food such as edible cereal boxes and giant KitKats, and for his unusual blend of savoury with sweet, like his bacon-and-egg ice cream. The gastronomic genius has admitted in several interviews that he never patents his food because if someone copied his recipe, he would be flattered rather than offended.

While the idea of patenting recipes is still thriving, the cons of this option are the lengthy application process, the fact that a patent is valid only for a non-renewable, limited period of time (twenty years), and also that the inventor must disclose the ingredients and process followed in achieving the unique outcome.

Okay, so patenting recipes seems like a fifty-fifty risk. Are there any other ways to legally protect recipes?

Yes, there are! Recipes can be protected as trade secrets, a cost-effective and time-saving option. Trade secrets could be recipes, formulae, processes or software, the confidentiality of which must be maintained for a person or organization to receive economic benefits.

Renowned commercial food and beverage establishments tend to opt to protect their recipes as trade secrets rather than patenting them, as a trade secret can be protected for an indefinite period of time. Such companies ensure only a select few people know the recipe, and all employees are mandatorily required to sign a non-disclosure agreement that prevents them from sharing any information about the secret recipe with anybody outside the company.

KFC, Coca-Cola and Krispy Kreme Doughnuts are a few franchisees which have protected their recipes as trade secrets. Colonel Sanders’ eleven-herb-and-spice recipe for KFC’s signature fried chicken is hidden in safe, while only two employees at any given time are aware of Coca-Cola’s secret recipe. The process of making Mrs. Fields chocolate chip cookies, McDonald’s french fries and Hershey’s chocolates are a few other trade secrets.

Is there any specific legislation that protects trade secrets?

In India, the courts have acknowledged and recognized trade secrets as a way to protect one’s confidential information, but in practice, protecting trade secrets is effected through contracts between the employer and employees, regulated by the Indian Contracts Act, 1872.

In the United States, each state has the option of adopting the Uniform Trade Secrets Act and as of May 2016, a federal legislation, Defend Trade Secrets Act, criminalizes the misappropriation of trade secrets. When the contents of a trade secret are leaked, the employer can sue the employee for damages and/or injunctive relief.

In conclusion, while applying for patent is a lengthy and expensive process to protect a recipe, the trade secret option is not foolproof either. Someone could always reverse-engineer a trade secret and figure out the ingredients of a recipe. However, this is certainly the best option at the moment.

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