Patenting food?

With the rise of the celebrity chef and the increasing amount of money spent on recipe books and all things food-related, I guess that it should not come as a surprise that intellectual property protection would not be far behind.

One would believe that the possibility to protect culinary creations is rather limited. Recipes (and books of the same) are protected by copyright law, and that should be the extent of the protection. Or should it? The purpose(and commercial value) behind a book of recipes is that buyers can replicate the recipes and cook them in their own homes. But what happens when the one using the recipes is a competitor? What if another chef is stealing your livelihood? Some chefs are fighting back by using more IP protection.

Infoworld has the great story of a restaurant in Chicago where a food writer received the following note in edible cotton-candy paper:

Confidential Property of and H. Cantu. Patent Pending. No further use or disclosure is permitted without prior approval of H. Cantu.

So many things to analyse in such a small (and may I say, transient) licence. Since when did cotton-candy become the medium of choice for food-related licensing? Could we have a new wave of eat-wrap contracts? I would truly like to see the patent application, but alas, USPTO searches have failed me so far. Mr Cantu could have applied for a design patent, many examples of artistic designs are protected in that way (see Greg’s Patenting-Art database for some). Could some food be protected as a business method? Sillier patents have been issued, so that would not be beyond the realm of feasibility.

However, there could be something analogous to the copyright/patent dichotomy in software protection. Recipes are the same as code, they protect the literal elements, and both are adequately protected under copyright. But food (and software) are more than code, they have a functional element where literal copyright protection could not apply. Would patenting do? At least not in Europe, although I can envisage a similar argument to the technical contribution test in software. I will not even try a guess what is the state of the art in the United States, I gave up a long time ago trying to understand it. Perhaps protecting some food as a design could be a better option.

Or maybe chefs could try an even stranger concept. Cook well, write recipes and get people into the restaurant. Silly me, that’s been tried by the likes of Jamie Oliver. Must try harder.

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