Recipe Patents in South Africa
Is it possible to patent food recipes in South Africa?
According to the Patents Act No. 57 of 1978 of South Africa, a patent may be granted for any new invention which involves an inventive step and which is capable of being used in trade, industry or agriculture.
The South African Patents Act states that a patent may not be granted for anything which consists of a aesthetic creation, artistic work, discovery, doing business, dramatic work, literary work, mathematical method, method for performing a mental act, musical work, playing a game, presentation of information, program for a computer, scientific theory or scheme. This means that the Patents Act does not reject recipes for patent protection, but recipe inventions must be subject to the provisions of the Act.
For a recipe to qualify as an invention it has to be new, involve an inventive step and be capable of being used in trade, industry or agriculture. A method of combining ingredients is patentable according to the Patents Act, but merely combining certain ingredients may only be patentable if the ingredients have never been combined before or the combining order is new. These combined ingredients would also have to result in something new and not be obvious.
New: The recipe must not have been made available to the public anywhere in world in any way. An invention is new if it does not form part of the state of the art immediately before the priority date of that invention. The state of the art shall comprise all matter which has been made available to the public by written description, oral description, by use or in any other way.
Inventive Step / Non-obviousness: The recipe must have a special feature or an achievement of unexpected results. An invention should be sufficiently inventive and not be obvious. A person with ordinary skills in the art should not be able to solve the problem at which the invention is directed by using exactly the same mechanism.
Used in Trade, Industry or Agriculture: The recipe must be able to be reproduced, multiplied and sold. Trade means to transfer ownership of goods from one entity to another by manner of exchange. Industry is the production of a product within an economy and agriculture is the cultivation of animals or plants and used to sustain life.
The South African Copyright Act provides copyright protection to works that are products of the mind and which have been reduced to material form. Recipe books are protected by copyright, but copyright cannot stop people from using the recipes, it can only stop people from copying that recipe for their own recipe book.