IP Protection in The Food Industry
Food is an essential commodity and is the body’s central fuel source. Consequently, food plays a significant role in driving the economy.
In Australia alone, the food and beverage industry accounted for more than 30%, or $113 billion, of Australia’s manufacturing output in 2021. And this number keeps on growing. The need for innovation remains conversely related to revenue growth. Over the years, commercial and local food enterprises have engaged in creative ways to cater to the fickle increasingly sophisticated food palates of people. With an influx of people entering the industry, it is important to stand out.
People in the food industry must protect their innovations from others riding off their creativity. That may include new ingredients, food-based products, improved production processes and apparatus, and food or beverage recipes.
Patents
A patent is perhaps one of the best ways to protect an invention. It grants a patentee the exclusive right to profit from the gizmo. Additionally, it is licensable, which creates more avenues for financial yield. An invention must be new and inventive over what is already publicly known or invented.
New ingredients (e.g., “food additives”), foodstuffs, improved production processes, apparatus, and food/beverage recipes are all patentable.
New ingredients are derivable from many sources; natural and synthetic. New compounds proven safe for consumption and safe for use in a comestible product can be patentable provided they can meet the screening process for originality and inventiveness.
For food or beverage recipes, a patent is unlikely to help. After all, to obtain patent protection, it is necessary to show that the resultant food product is new and inventive over the ones that already exist. It is arduous to establish that the combination of the ingredients is innovative. A mere combining of or different steps in mixing up ingredients does not constitute an invention! Further, the Australian Patents Act includes specific provisions preventing the patenting of recipes:
- a substance that is capable of being used as food and is a mere mixture of known ingredients, or
- a process producing such a substance by mere admixture.
These two guidelines are significant because they highlight how recipes overlap with inventive steps. Incorporating known ingredients to change the taste of a food is predictably not patentable. That is because it does not offer any technical advantage over any variation in a food group.
Now “mixtures” encompass everything and are not limited to powders, gases, and solutions. In addition, an admixture can also be any food that has retained its culinary purpose but in a different form. So, for example, candied and hardened sugars are not patentable.
Recipes that have a new technical innovation may also be patentable. The Australian Patent Office has granted over 1600 standard patents concerning food products from 2017 to 2021 – an average of about one granted patent application per day, and the New Zealand Patent Office granted over 330 applications over the same period.
Furthermore, methods and processes in food making can also be patented.
Trade Secrets
If the recipe does not meet patentability requirements, protecting it as a trade secret is an option. That’s how many popular food franchises retain their food innovations protected from “copycats”.
A trade secret means that the recipe is kept confidential through appropriate confidentiality agreements with suppliers, distributors, and employees associated with the If people are able to recreate the recipe through reverse engineering or independently, a business cannot take legal action for intellectual property infringement.
Nonetheless, protecting a recipe through a trade secret can be very successful, for example, the recipe for Coca-Cola has remained a closely guarded trade secret since 1886.
Trade Marks
Another viable option to protect a recipe is through a trademark. So, food products with a strong reputation in the industry should opt for this option. It is advantageous to brand a food product and seek a trademark registration for the brand as customers will seek out the origin of the supply through the branded name of a product or service.
However, a trademark only gives brand owners the right to stop competitors from using the brand name. It does not prevent others from copying and using the recipe.
Copyright
If a company publishes a food recipe, it will automatically fall under the protection of copyright legislation.
However, it is imperative to remember that copyright does not protect ideas. It protects the material manifestation of the idea. Consequently, copyright protection only exists in the tangible expression of a work.
Summary
In the food industry, patenting is an effective option to protect an invention provided the innovation meets the requirements for patent protection. Therefore, new ingredients for foods or beverages, foodstuff products, and improved production processes must fulfill the prerequisites of a patentable invention. That means they should be novel and inventive given the prior art. Recipes are also patentable if they meets the patentability requirements, however, it is more likely that recipes will be best protected as a trade secret.
There are lots of IP protection methods applicable in the food industry. However, this requires a coordinated strategy and proper planning. Choosing the most appropriate IP protection for an ingredient or recipe can make or break an industry. Strategic IP protection will always play an imperative role in having an edge against competitors.
Our Trademark Lawyers in Sydney are Experts when it comes to Registering Trademark or Trademark Opposition Process in Sydney
Alessandra “Max” Maxine, Digital Administrator
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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.
