Patenting a family's favourite recipe

Section 13 of the Patent Act, 1952 states that "if in the case of any application it appears to the registrar that the application claims as an invention a substance capable of being used as food which is a mixture of known ingredients possessing only the aggregate of the known properties of the ingredients, or a process producing such a substance by mere admixture, then he shall refuse the application".

Such a provision is not provided for in the current Patents Act.

Because such a provision is not explicitly excluded one can draw the conclusion that food patents or recipes are allowable in SA. There are, however, several stumbling blocks.

If the recipe is an old family tradition passed down through generations the primary hurdle is that the person who wants to patent it is not the inventor. Section 27 of the South African Patent Act provides that "an application for a patent in respect of an invention may be made by the inventor or by any other person acquiring from him the right to apply or by both such inventor and such other person".

Further, it is likely that this old family recipe belongs to many families and has been published some place by someone. In addition, the person who is the actual inventor is probably no longer known.

The main stumbling block, however, is the novelty and inventive step requirements.

The South African Patents Act provides that a patent may be granted for any new invention that involves an inventive step and that is capable of being used or applied in trade or industry or agriculture.

Since recipes are typically combinations of ingredients that are known for a specific purpose, even if the combination is new, establishing that the combination is inventive can be difficult. The difficulty is there are so many recipes and methods of cooking that it may be difficult to demonstrate novelty and an inventive step.

The recipe must have some special feature (an inventive step), for example an achievement of unexpected results such as fat-free processes or ingredients, the addition of certain off-theshelf ingredients such as antioxidants, or defining-process steps such as preservation, fermentation or ageing.

Almost all food patents fall into two primary categories of claims, namely, composition of matter claims and processes for making product claims. A recipe is merely a process. The question boils down to whether the process is new and not obvious. Similar to chemical compounds and methods of making these, food recipes are technically compositions, that is methods of combining certain ingredients to make something different.

On a more practical note, the more the invention addresses new preparations or cooking methods, as opposed to merely new combinations of ingredients, the better the chances will be to receive valid patent protection.

For example, if one is using some ingredients that have never been used before, or the order of combining them is new and it's not obvious to do so, then it's possible to get a composition patent on that recipe.

However, merely listing ingredients and their proportional ranges without any new or inventive concept will not result in a patentable invention. For example, if you merely take food items off the shelf and mix them without doing anything special to the process then the proposed invention does not reach the level of inventive step required for patentability.

There are several South African patents already directed to one or other types of food compositions.

One of the South African patents, for example, deals with a potato-based food product. The invention provides for a method of preparing a potatobased food product consisting of the steps of processing potatoes into potato articles having a desired size and shape, blanching the potatoes, dipping the blanched potato articles in a solution to prevent nonenzumic oxidation of the potato articles, drying and coating the potato articles.

As can be seen in the example above, preservation in a recipe appears to be a defining step to increase the chances of obtaining a valid patent. To reiterate this argument, the patent classification system that is used to classify patents according to the different areas of technology to which they pertain provides for class A23. Class 23 provides for the preservation of foodstuff in general.

Therefore, if your recipe meets the basic patentability requirements and is not just a mere admixture of known ingredients, and involves a special feature that achieves an unexpected result that would not have been obvious for a skilled person to achieve in view of prior publications, then your food recipe could be patentable in SA.

Source: Business Day