Shared custody: Swetha Sivakumar on why a recipe cannot be ‘yours’ - Hindustan Times
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Shared custody: Swetha Sivakumar on why a recipe cannot be ‘yours’

BySwetha Sivakumar
May 18, 2024 06:14 PM IST

Most countries don't classify recipes as creative expression, so patenting them is almost impossible. What can be trademarked then? Take a look.

There was a time in 2016 when I was obsessed with making the perfect baked medu vada, for my blog.

A recipe for stuffed-crust pizza was published in a cookbook before it was patented, and so it can now be created by anyone. (Adobe Stock) PREMIUM
A recipe for stuffed-crust pizza was published in a cookbook before it was patented, and so it can now be created by anyone. (Adobe Stock)

It took me months of trial and error before I got it right. My method involved whipping the batter to trap the bubbles of air, piping the mix into doughnut trays and then broiling these in the oven until the crust was a crisp brown. (Broiling, incidentally, involves applying high heat to food from above, for a nice brown finish. You can’t really cook food in this way, since too much exposure would char the outside before the centre was done.)

I was so proud of my eventual dish, and my blog post. But the moment I posted it online, I knew I had lost all ownership of the recipe. There was nothing to keep other content creators from copying it and passing it off as their own. I don’t think anyone was dying to do this, but either way, it was literally out of my hands.

Swetha Sivakumar’s baked medu vadas.
Swetha Sivakumar’s baked medu vadas.

Most countries do not classify recipes as creative expression, so claiming intellectual property rights on them is almost impossible. Any authored content, including a blog post, can be copyright-protected. But this only means that you can copyright the text above and below the recipe, but not the actual formula. Why? Well, in legal contexts, a recipe is essentially viewed as a set of instructions, and ingredient, as a list. As such, they cannot be copyright-protected any more than a gym schedule or washing-machine manual could be.

This wasn’t always so.

In the Greek city of Sybaris, in 500 BCE, Athenaeus writes of how a claim to a new dish was taken very seriously. The creator would cook it and present it before a panel. If they ruled it unique, this gave the “inventor” what amounted to a short-term patent: only he or she had the right to make that recipe in that city for the first year.

Now, that might be a bit extreme, particularly today. A home chef looking to build an online presence would be booed off every platform if she sought to patent her hacks. Besides which, that is not the spirit in which this sphere operates. Millions of home cooks, including me, have benefited from the free and enthusiastic exchange of knowledge and ideas.

How, then, do food companies do it?

They too cannot patent their recipes, which is why they guard them so closely. But, in addition to secrecy, food companies do patent their process. Lay’s, for instance, has laid claim to a specific “process for producing baked potato slices with expanded texture”; in other words, the technique for making their chips. The Hershey’s Kisses shape has been trademarked. So have the names of certain dishes. ITC, for instance, could sue everyone who claims to make a Dal Bukhara, but has so far chosen not to.

Processes and characteristics can be trademarked. The shape of Hershey’s Kisses, for instance, is protected by law. (Adobe Stock)
Processes and characteristics can be trademarked. The shape of Hershey’s Kisses, for instance, is protected by law. (Adobe Stock)

Going after small businesses or hobbyists is rarely a good look. Some brands still try. Earlier this year, David Chang, owner of Momofuku, sent cease-and-desist notices to a host of small American businesses that use the term “Chili Crunch”. The brand faced such a public backlash for this action that Chang withdrew the notices, and apologised for the action, during a podcast posted in April.

There have been lawsuits that have famously backfired too. Anthony Mongiello had an idea for stuffed-crust pizza and applied for a patent in 1984. In 1995, Pizza Hut rolled out a pizza with cheese stuffed into the crust. When Mongiello sued, the judge ruled in Pizza Hut’s favour, on the grounds that the technique had been published in a cookbook before his patent was awarded, a detail that the patent office had missed.

In another case, the food giant Smucker’s tried to secure a patent for a specific kind of peanut-butter-and-jelly sandwich. Their method involved applying peanut butter to both slices, and putting the jelly in the middle, to stop it from leaking and making the bread soggy. The application was denied, of course, on the rather obvious grounds that the method was already in use around the world.

It was the recent David Chang fracas that reminded me of my precious vadas, and sent me down this rabbit hole.

When I think of my recipes now, I take comfort in the fact (and you might too) that even the famous E = MC2 equation could not be patented. Einstein would have known this before he began work on it; he once worked at a Swiss patent office, after all.

Math formulas cannot be patented because they explain a natural law; they don’t create it. The workaround here, as with the food companies, is that the application of the formula (in things such as software programs and machines) often involves a product or process that can be patented.

As for me, I have decided to stop worrying about ownership, and focus instead on exploring the science behind food phenomena. That has always been where I find joy!

(To reach Swetha Sivakumar with questions or feedback, email upgrademyfood@gmail.com)

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