Cooking up a Patent for your unique recipe might not be as easy as you think - Graham McGlashan

Glasgow can lay claim to many inventions that helped revolutionise the modern world: television, the steam engine, antiseptic and cash machines. One lesser-known invention is the chicken tikka masala.

Graham McGlashan is a Chartered (UK) & European Patent Attorney, Marks & Clerk​​​​​​​

Glasgow-based chef Ali Ahmed Aslam claims to have invented the iconic dish in the 1970s after a local customer complained that his tikka dish was too dry. However, a series of rival claims have since surfaced elsewhere in the UK.

It certainly gives food for thought when it comes to IP protection in relation to the humble curry and what it takes to secure rights over a new twist on long-established recipes.

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Scotland has a well-deserved reputation for top-class curry houses serving some of the most innovative and delicious curries. A hallmark feature has been innovative twists on traditional favourites. Haggis Bhuna, anyone?

Innovative recipes have long been a way for food businesses to add value to their offering. The traditional way to protect these value-adding innovations is by keeping them a trade secret. The formula for a certain well-known fizzy drink, the coating on fried chicken and special pasta sauces are only a few well-known examples. While this is a valid option and adds a certain mystique, in practice it is often difficult to keep the recipe secret in the modern world of ingredient labelling legislation and mass production techniques.

Patenting is a strong form of IP protection, most often associated with cutting-edge digital technologies and pharmaceuticals. However, it is less well known that it is possible to gain patent protection for a wide range of innovative products and processes, including recipes.

One example of a Patent application for a new curry was discussed in a UK Intellectual Property Office decision on a Patent application by a Mr Lalvani, who had devised a new way of making the curry Murgh Makhani, also known as butter chicken. Mr Lalvani’s innovation was to make a healthier version of Murgh Makhani by using a low-fat probiotic yogurt instead of butter, cream, or other saturated fats.

For a Patent to be granted, the innovation must be new (i.e. not known anywhere in the world before the patent was filed), inventive (non-obvious) and capable of industrial application. In this case, the Patent Examiner discovered recipes for low-fat chicken tikka masala that used low-fat natural yoghurt and didn’t use cream, butter or other unsaturated fats.

Among the issues discussed was could Mr Lalvani’s recipe be for Murgh Makhani (“butter chicken”) if it didn’t actually have butter in it? The Examiner concluded that the invention was not a Murgh Makhani but a “Murgh Makhani-like dish similar to chicken tikka masala”, such that it was obvious in view of the previous chicken tikka masala recipe. The applicant tried to distinguish their recipe from the tikka masala by requiring pulped pumpkin in the recipe. However, an error in the filing of the application meant that this distinction could not be used.

The moral of the story is that innovative recipes that could be of high value to the innovator can potentially be patented, offering the possibility of strong protection for their innovation - but that the correct professional help can be vital in cooking up the patent.

Graham McGlashan is a Chartered (UK) & European Patent Attorney, Marks & Clerk

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