SE­LECT

The Irish Times - Friday - The Ticket - - SEVEN DAYS - AoifeMcEl­wain

FOOD AS IN­TEL­LEC­TUAL PROP­ERTY When it comes to the le­gal­i­ties of food, it’s gen­er­ally un­der­stood that in most cir­cum­stances, it is not pos­si­ble to copy­right a recipe. How can one per­son or com­pany own the recipe for bread, when we’re talk­ing about bread, flour, wa­ter and yeast? This is where the some­times puz­zling idea of food patents come in.

“In or­der to be patentable, an in­ven­tion must be new and not ob­vi­ous in light of what is al­ready known,” chem­i­cal patent ex­pert Jo Shaw wrote in a 2010 ar­ti­cle for In­ter­na­tional Law Of­fice.

“Foods pro­duced by com­bin­ing tra­di­tional in­gre­di­ents and us­ing stan­dard cook­ing or prepa­ra­tion tech­niques are un­likely to meet these re­quire­ments, but in­no­va­tions in food tech­nol­ogy of­ten re­sult in prod­ucts that qual­ify as patentable inventions.” Snow used New Zealand com­pany Tip Top’s Mem­phis Melt­down Gooey Caramel Ice Cream as an ex­am­ple of a patented food tech­nol­ogy.

First crunch

The first trade­marked ap­ple comes from Aus­tralia. The Cripps Pink was in­vented by Aus­tralian hor­ti­cul­tur­ist John Cripps in 1973, when he crossed a Lady William ap­ple with a Golden De­li­cious, and cre­ated what is now widely known as the Pink Lady. It’s now owned and li­censed by Western Aus­tralia’s Depart­ment of Agri­cul­ture and Food, which owns the plant breed­ers’ rights for the ap­ples in mul­ti­ple coun­tries.

An early tale of patent dis­pute in­volves Henry Perky, an in­ven­tor based in Nebraska, US. He’s known as the in­ven­tor of shred­ded wheat ce­real and the ma­chine that cre­ated what he called “lit­tle wheat pil­lows”, which he in­tro­duced to the mar­ket in 1892 and re­ceived a patent for in 1895.

Ap­par­ently, his ri­val in the cold break­fast rev­o­lu­tion, John Kel­logg, said Perky’s shred­ded wheat were like “eat­ing a whisk broom”. Nice. Perky died in 1906 but his Shred­ded Wheat Com­pany con­tin­ued to pro­duce the break­fast ce­real.

The Na­tional Bis­cuit Com­pany (known to­day as Nabisco) bought Perky’s com­pany in 1930, and brought a case against Kel­logg’s Com­pany, which had been mak­ing and sell­ing their own shred­ded wheat since at least 1927. The Supreme Court re­jected the case in favour of Kel­logg’s, al­low­ing them to keep mak­ing shred­ded wheat ce­real and call­ing it Shred­ded Wheat.

The de­sign for the ma­chine for cre­at­ing candy floss was patented in the US in 1899 by den­tist William Mor­ri­son and con­fec­tioner John C Whar­ton, orig­i­nally in­tro­duced to the world in 1904 as Fairy Floss. It’s still known to­day as Fairy Floss in Aus­tralia. An­other ma­chine was in­vented and patented in 1921 by an­other Amer­i­can den­tist (I mean, come ON) named Joseph Las­caux in New Or­leans, us­ing the term cot­ton candy, as it is known in the US.

Seeds of dis­sent

More re­cently, the case of Mon­santo seeds patent­ing of their ge­net­i­cally mod­i­fied crops has been con­tro­ver­sial be­cause of claims against the multi­na­tional cor­po­ra­tion of hav­ing un­fair ad­van­tage over smaller farm­ers. Not to men­tion the num­ber of le­gal cases taken against smaller farm­ers who have been found to be grow­ing Mon­santo patented seeds, some­times through un­in­ten­tional cross-con­tam­i­na­tion.

The my­cro­pro­tein tech­nol­ogy used to cre­ate the meat sub­sti­tute, Quorn, was first patented in 1985. In the EU, patents ex­pire af­ter two decades and so the Quorn patent ex­pired in EU coun­tries, mean­ing other com­pa­nies have the right to the tech­nol­ogy but not the brand name. In an in­ter­view in 2011, Quorn ceo Kevin Bren­nan said: ”Some patents sur­round­ing the core tech­nol­ogy have ex­pired, but the prod­uct uses a pe­cu­liar fer­men­ta­tion method, and we have 30-plus years ex­pe­ri­ence in per­fect­ing this on site to pro­duce the prod­uct bet­ter and at a lower cost. Huge re­lated costs in­clude £30m for a fer­men­ta­tion tower and re­lated equip­ment, so you can’t sim­ply look at a patent and say ‘there you go’.”

Which brings us to the topic of trade se­crets. In a 2013 vol­ume of In­ven­tors Eye, the pur­pose of trade se­crets was ex­plained as an­other way to ac­quire in­tel­lec­tual prop­erty for food prod­ucts. “Trade se­crets are of­ten used by com­pa­nies to pro­tect their recipes and pro­cesses, but they dif­fer con­sid­er­ably from patent pro­tec­tion. With a trade se­cret, in­ven­tors do not dis­close the in­ner work­ings or for­mula of the in­ven­tion, and em­ploy­ees or col­lab­o­ra­tors usu­ally sign non-dis­clo­sure agree­ments. Many food com­pa­nies and restau­rants choose to use trade se­crets to pro­tect their recipes and meth­ods be­cause it al­lows them to use the se­cre­tive na­ture as a mar­ket­ing tool.” Fa­mous recipes un­der US pro­tec­tion of trade se­crets in­clude those for Coca-Cola, Dr Pep­per and KFC.

Ire­land does not have laws that specif­i­cally pro­tect trade se­crets. In­stead, our EU Sys­tems of Pro­tected Des­ig­na­tion of Ori­gin, Pro­tected Ge­o­graph­i­cal In­di­ca­tion and Tra­di­tional Spe­cial­ity Guar­an­teed are in place to pro­tect foods ei­ther by ge­o­graph­i­cal po­si­tion or from the tra­di­tional tech­niques used.

In­tel­lec­tual prop­erty law is con­sid­ered to be es­sen­tial to pro­tect­ing your busi­ness in a com­pet­i­tive mar­ket, ac­cord­ing to a 2015 re­port called In­tel­lec­tual Prop­erty (IP) regime in Ire­land by Grant Thorn­ton. This re­port brings up a po­ten­tially fas­ci­nat­ing is­sue on the evo­lu­tion of health warn­ings, and how they might move from to­bacco to un­healthy food prod­ucts. In the re­port, So­phie Anger, as­so­ciate gen­eral coun­sel at Mars Inc, said the com­pany, and oth­ers in the in­dus­try, were “mind­ful of the pos­si­bil­ity.”

Whether or not food law will be de­vel­oped to pro­tect the con­sumer or the food in­dus­try re­mains to be seen. Per­son­ally, I’m still get­ting over the fact that candy floss was in­vented by den­tists.

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