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How to protect my secret sauce? Patent? NDA?

I had this interesting question today "My auntie runs a food stall, how can I protect her secret sauce?"

Any idea? Patent? NDA?


I had this interesting question today "My auntie runs a food stall, how can I protect her secret sauce?"

Any idea? Patent? NDA?

How many servings must his auntie sell in order to make back the money that you spend for patenting? Probably a few thousand plates, right? Does that make sense? No.

And yes, there are patents for food stuff, but these are for industrial food manufacturers. I remember that I spent weeks in translating tofu making process patents from English to German language, back in 1995. This is when I stopped eating industrially made tofu.

Another example is be the recent innovation of “Impossible” burgers and other plant-based faux-meat products which resulted in patents protecting the processes required to manufacture its various components, resulting in a plant-based food that possesses many desirable meat-like qualities.

Then there are trade secrets and copyright as potential protective IP rights. When we talk about patenting food recipes, it comes with applying for a patent that an inventor necessarily has to publicly disclose their invention such that it will no longer remain secret. Therefore, most inventors prefer to keep their recipes secret.

And even if your auntie gets a patent, will she have the money to go after potential infringers, using a court? The answer is "no".

When talking with others about her recipe, your auntie will have to rely on the law of confidentiality, as well as contract law, concurrently. The law of confidentiality is a common law rule which applies so long as the legal requirements of the rule are satisfied; while contract law operates where there is a contractual relationship between the parties.

In general, there are three steps that must be satisfied in order to make out a claim for breach of confidence under the law of confidentiality:

  • The information in question must have the quality of confidence, i.e. it cannot be publicly known information, and disclosing it would harm you or benefit others;
  • The information must have been imparted in circumstances importing an obligation of confidence; and
  • That person has made unauthorized use of that information to your detriment. The breaching party would then be liable to you for any damage caused to you by such use.

In Singapore, the Court of Appeal in the recent case of I-Admin (Singapore) Pte Ltd v. Hong Ying Ting and others [2020] SGCA 32 has updated the approach to confidential information, ruling that once the plaintiff can establish the first two steps, they will have a claim for breach of confidence against the defendant. It will be for the defendant to defend against the claim by proving that they had acted in good conscience. This change makes it easier for employers, and other holders of confidential information, to successfully make out breach of confidence claims, taking into account the difficulties faced by plaintiffs in proving that the defendant had made unauthorized use of the information.

It is therefore important to take precautions to protect one's confidential information, such as limiting the number of people with access to the recipe, and keeping clear records of any transactions involving information related to the recipe, ensuring that the recipe is not disclosed to anyone unless with strict obligations to maintain confidentiality. That calls for an NDA.

Unlike patent protection which expires when the term of protection ends, a trade secret can last indefinitely so long as secrecy is preserved. Adopting the appropriate measures to secure the secrecy of your recipe can help to enhance the reputation, and value, of your business, as it adds a degree of prestige and mystique to your goods.

Once confidential information enters public knowledge, and unless the disclosing party did it without authorization, e.g., in breach of his contractual obligations or any non-disclosure agreement, it will be difficult to allege a breach of confidence against the disclosing party.

In other words, it is possible to use trade secrets to protect your aunties recipes. The advantage of protecting your recipe as a trade secret or confidential information is that the recipe can be potentially protected so long as the information is kept secret.

There is still copyright protection if the recipe is published, such as on a blog or in a cookbook, as a literary work. The downside to this is that the published recipe is then available for copying by others. It is not feasible to completely stop all copying. Copyright protection also only lasts for a certain time period according to the law.

For added protection, one could require any persons involved in the operation of your auntie`s the food stall to enter into confidentiality or non-disclosure agreements which can protect the method of preparing the dish, the ingredients, and the steps. However, that is not practical and it is difficult to enforce after the employees leave, especially when the information becomes part of the employee’s know how.

So in short words: forget it.


How many servings must his auntie sell in order to make back the money that you spend for patenting? Probably a few thousand plates, right? Does that make sense? No. And yes, there are patents for foo ... [read more]