Patterico's Pontifications

2/19/2007

Tyranny of Patent Law – Part III [Patenting Food Recepies]

Filed under: Court Decisions,General,Law,Public Policy — Justin Levine @ 5:31 pm



[posted by Justin Levine] 

Imagine that large Pizza Chain X develops a new recipe for making pizza by combining a thin crust, a small dash of Tobasco in the tomato sauce, a blend of 2 cheeses, heating it for 10 minutes at 450 degrees, and then heating it an additional 10 minutes at 375 degrees.  

Should another mom and pop pizza place be able to use the same recipe? Or should Chain X have a legally enforced monopoly on how other people use their own kitchens for the next couple of decades? What if the other chain merely adjusts the oven temperature by 5 degrees or so? Would that make enough of a difference?

What about the notion of simply granting a lengthy patent to the first inventor of pizza altogether – thereby eliminating any notion of competition in order to reward his inventiveness? A single pizza chain to serve the entire country….After all, if we don’t amply reward the inventor of the pizza with a state enforced monopoly on the recipe, then we will be threatening the very incentive to create new foods in the first place, right? We need to protect this guy from more efficient pizza makers who can make similar tasting dishes at much lower prices.

Sound far fetched?? Perhaps. But not nearly as much as you may think.  

[Hat-tip: Courthousenews.com]

This should serves as a good challenge for those who claim (falsely, in my view) that there nothing at all incompatible with free market capitalism and broad intellectual property schemes.

Part II of the Tyranny of Patent Law here.

[posted by Justin Levine]

22 Responses to “Tyranny of Patent Law – Part III [Patenting Food Recepies]”

  1. This is a weak and pathetic example upon which to base an argument, and ultimately public policy. Bad patents are like bad reporters and bad bloggers. They do not make the case for the whole.
    Continuing with your hypothetical, now imagine that a significant proportion of the world population begins to die due to some horrible viral digestive pandemic. A bright inventor comes up with a unique pizza formulation that can sustain half of the dying population that can digest nothing else. Unfortunately, it cost millions of dollars to develop the pizza. With no patent protection there is no doubt that the inventor would never find the funding needed to even develop the product in the first place.
    You can argue (your pizza story) that something that is inexpensive to develop doesn’t deserve a great reward. But nobody would undertake great risk and cost if there was no payback or reward. Sadly, in this complicated modern world your simple pizza analogy is less apt than the huge investment and risk decisions of modern day research.

    Marv (619b0f)

  2. What is it about private property that Libertarians just can’t understand?

    JR (0064f3)

  3. Justin:

    What about the notion of simply granting a lengthy patent to the first inventor of pizza altogether – thereby eliminating any notion of competition in order to reward his inventiveness? A single pizza chain to serve the entire country.After all, if we dont amply reward the inventor of the pizza with a state enforced monopoly on the recipe, then we will be threatening the very incentive to create new foods in the first place, right? We need to protect this guy from more efficient pizza makers who can make similar tasting dishes at much lower prices.

    Don’t you find it at all disconcerting that the only way you seem to be able to make your point is by a frankly absurd straw man argument?

    Nobody “invented” the pizza; it has existed in various forms for centuries, not only in what is now Italy but elsewhere in Europe.

    No patent would be granted for “the pizza.” By the same token, no patent would be granted for a recipe that differed from other, similar recipes as slightly as changing the oven temperature by five degrees.

    If you simply must use mindless inflammatory language — the “tyranny” of patent law; intellectual property “schemes” — couldn’t you at least put some thought into constructing reasonable, or at least non-risible, analogies?

    It can’t be that difficult.

    Take, for example, the specific identities and quantities of spices that make up the seasoning for Kentucky Fried Chicken; and suppose that the person who wants to make identical chicken did not independently arrive at a similar recipe, but was in fact given the exact recipe by a disgruntled KFC worker… and assume the competitor advertises that he sells “the same, exact recipe as KFC, but a dollar cheaper!”

    Would that make any difference at all in your analysis? Do you believe that allowing him to do so with impunity would result in a rush of new chefs concocting wonderful, new recipes?

    Dafydd

    [What is this “Kentucky Fried Chicken” of which you speak? — P]

    Dafydd (445647)

  4. If he got it from a disgruntled employee, it would be a trade secret infringement.

    Although, IMNSHO, patent law should have a lot more flexibility in the _length_ of the term. Just as there’s a lot of flex between obvious & not-obvious. A very long list of software patents aren’t “obvious” in that everyone immediately thinks of them. But they _are_ obvious if you’re stuck in a room and told to solve the same problem that the originator set out to solve.

    Al (b624ac)

  5. Justin,

    I wonder why those capitalism- and liberty-hating Founders saw fit to specifically provide for intellectual property protection in the Constitution. Probably to undermine capitalism.

    But hey, you have a lot of support for your view. The Chinese Communist Party is in full agreement with your disdain for intellectual property protection.

    And, finally, where are all these straw men “who claim (falsely, in my view) that there nothing at all incompatible with free market capitalism and broad intellectual property schemes”? I’d have said that broad intellectual property schemes encourage investment in new inventions – good for capitalism, no?

    The usual argument against broad intellectual property schemes is that they discourage and/or delay innovation by artificially stifling competition – not by winning in the marketplace, but by force of gummint. That’s bad for innovation, and bad for consumers, but not necessarily bad for capitalism. Is it?

    Sincerely,

    A Patent Practitioner

    jb (5cb2e7)

  6. From someone who owned a restaurant: any change in a recipe makes a completely new recipe. You can add or subtract 1/4 teaspoon of something, change the oven temperature, change the cooking time, whatever. This is all according to my attorney who drew up the NDA for my chef.

    Pizza Hut might have a patent (or trademark, I don’t remember which) on its recipe, but it is very easy to produce something that tastes the same but is from a different recipe.

    Steverino (937639)

  7. I was afraid that when I looked at the comments, I would fine everyone in agreement with Justin. I’m glad I’m wrong.

    Speaking as an entrepreneur, patents are one way for the small business to protect itself and keep from being crushed by big companies, which have far greater economies of scale and access to customers. In other words, it’s one of the tools we use to keep the market changing and capitalism on the move.

    The system may be flawed, but that doesn’t mean it’s useless.

    I especially agree with Dafydd: Justin, please put more thought into your argument if you really wish to persuade us.

    just_some_guy (0cef2f)

  8. This is just silly. It’s far better for someone to protect a recipe as a trade secret, where they have a chance at maintaining some sort of monopoly, than with a patent, where it becomes public knowledge upon publication and enters the public domain 20 years after the filing date when the patent expires.

    Furthermore, if a patent claim for the recipe of Pizza Chain X was drafted as narrowly as the example given above, it would be ridiculously easy to avoid infringement – meaning the patent was essentially worthless.

    As just some guy said, the patent system may have it’s flaws, but it’s far from useless. Considering the amount of innovation that comes out of this country (with a very strong patent system) compared to other countries having weak (if any) patent systems, I’d say ours is working pretty well – and as the founders intended.

    thirteen28 (1da714)

  9. “…a state enforced monopoly…”

    You mean like the Justice, strike that, Legal system has?

    TC (b48fdd)

  10. The +/- 5 degree thing won’t be enough as that is probably the accuracy of a “standard” oven thermometer.

    mer (c1d7be)

  11. Dippin’ Dots® is the best food ever, perhaps second only to Tabasco® Brand Pepper Sauce.

    carlitos (b38ae1)

  12. Comment to the commenters who take me to task –

    Of course my hypothetical is extereme. No court would seriously offer patent protections to a scheme of baking a pizza at a different temperature. But that was my may of demonstarting the absurdity of the case that I linked to. Would any of you care to comment on that case? Or would you simply like to knock down the pizza hypo?

    That’s why I wrote “Sound far fetched? Perhaps.” Get it? I realize that the pizza example is a weak and extreme example to criticize broad patent schemes. But it is not a weak analogy to criticize what was being argued in the case as deserving of protection. The jury aparently agreed with me – but (unlike the commenters here), I am outraged that a business person had to get dragged into court over this.

    Dafydd – The answer to your KFC question is “Yes”. Independent thrid parties should be able to freely use the KFC recipie if they have knowledge of it. The only person who should be punished is the disgruntled worker, assuming he made an explicit contract to keep it confidential. I don’t beleive that state power should extend into our kitchens if we have independenet knowledge of how to create food.

    Al is right in the regard – it would be a trade secret case (not a patent case). But the remedy in a trade secret case should certainly not be to prevent independent chefs from making food using whatever knowledge they have.

    Patent Practicioner – I’m sure that you know full well that many of the founding fathers were ambvilent over IP. But even the ones who pushed for that clause in the consitiution would certianly agree that today’s schemes are overbroad. I doubt they would have agreed to any protections beyond the life of the actual inventor (meaning a live person – not a corporation).

    Admittedly, we have a different view of what a “free marketplace” is. I think that you can only have a free marketplace when you have competition among similar products. Your argument seems to suggest that the only competition necessary is that between who can reach an invention first (in order to obtain a monopoly on it).

    TC – Obviously in any civilized society, there must be a state monopoly on police and legal powers. That is very different than a state enforced marketplace.

    Mer – Good point. But would you care to re-read the case that I linked to and try explaining what it is about about the plaintiff’s ice cream “storage” invention that you feel might be worthy of patent protection.

    (To all commenters) – That is the real point of my posting – to take the plaintiff in the case to task (as well as the current legal system that allows him to bring such a case to court in the first place). Here is my challenge for you: Give me your arguments as to why you think the plaintiff even had a colorable claim in this instance (even though he obviously lost at court
    already). How do you justify that? I’d be curious to know. Isn’t he arguing that storing ice cream at a certain temperature is somehow worthy of protection? What if somebody copied the plan of making ice cream “dots”, but stored it at a cooler temperature? Would that make any differents? What parts of his technique do you feel might be worthy of a patent? I can’t find any, but perhaps you commenters disagree.

    Steverino – You are right of course. But if we lived in a science-finction world where receipies could be patented, then any slight variations on them would still infringe on the core patent. Just like if I invented a Acrobat Reader computer program with a different control menu layout – the courts would still tag me for infringing on Adobe’s patent.

    Justin Levine (b1cc1f)

  13. What is it about proofreading that Libertarians just can’t understand?

    JR (0064f3)

  14. Justin:

    Of course my hypothetical is extreme. No court would seriously offer patent protections to a scheme of baking a pizza at a different temperature. But that was my may of demonstrating the absurdity of the case that I linked to. Would any of you care to comment on that case? Or would you simply like to knock down the pizza hypo?

    Why should we? You didn’t.

    If the losing argument by the plaintiff’s attorney was the “real point of [your] posting,” then why didn’t you discuss it? Or even tell us what it is?

    I’ve only been blogging for a bit less than two years, but I’ve been reading blogs since before the Iraq war started. And in general, most people don’t follow links, especially when they’re given no indication whatsoever what’s in them (in this case, a 23-page federal appellate court opinion; yeah, I’ll squeeze that one into my copious free time.)

    It’s not a good idea for your “real point” to be locked up in a link; if you want us to comment on it, put it in your own post.

    Dafydd – The answer to your KFC question is “Yes”. Independent third parties should be able to freely use the KFC recipie if they have knowledge of it. The only person who should be punished is the disgruntled worker, assuming he made an explicit contract to keep it confidential. I don’t beleive that state power should extend into our kitchens if we have independenet knowledge of how to create food.

    I detect a subtle shift here…

    I wasn’t asking about private kitchens, where Grandma is cooking up some fried chicken for the family meal. I was asking about a commercial restaurant selling fried chicken with the advertisement “same recipe as KFC, but a dollar cheaper!”

    You skipped all this part and took me to task, it seems, for arguing that “state power should extend into our kitchens.” You also added “if we have independent knowledge of how to create food,” likewise ignoring the point that the seller obtained the recipe, not by independently cooking up some finger-lickin’ chicken, but rather by being given it by a disgruntled KFC worker.

    So I asked one question; but rather than answer it, you reformulated it into a much easier question and answered that instead.

    This reminds me of what a professor friend of mine (John Barnes) once told me. He propounded to his class a classic ethical conundrum:

    Nicholas Barnacle owns a shipping company with a single ship in the late 18th century. He sells passage across the Atlantic from England to the American colonies.

    But he’s not doing well, and he hasn’t been able to do proper maintenance on his ship; it’s quite rickety and pretty dangerous to ride. In fact, the odds are reasonably high (say 25%) that the next passage will terminate in Davy Jones’ locker, rather than Portsmouth.

    But on the other hand, just one more passage will give Barnacle Shipping and Passage enough money to buy a new, state of the art ship. So he decides to take the chance: without telling the passengers about the dire state of the ship (because then they wouldn’t go), Barnacle sends the old vessel on one, last passage.

    It’s touch and go a few times; but by great good fortune and the divine grace of God, they arrive safely and nobody dies. He sells the old ship for scrap and buys a new one.

    Question: given the safe arrival of the passengers, did Barnacle do anything unethical or morally wrong?

    And when John got the papers back, he discovered about half the class had answered with some variation of the following:

    “Barnacle did nothing unethical or immoral, because fortunately, Barnacle’s ship had plenty of lifeboats for everybody, so nobody was really in danger.”

    Half the class failed that question, Justin.

    Dafydd

    Dafydd (445647)

  15. Justin:

    I put a long response up; alas, I misspelled your name. I then posted the same post with the misspelling corrected. Neither has appeared here, however.

    To whomever may be monitoring comments, please post the second, with the correct spelling, rather than the first! I was not trying to give Mr. Levine one of those Swedish operations…

    Dafydd

    Dafydd (445647)

  16. Admittedly, we have a different view of what a “free marketplace” is. I think that you can only have a free marketplace when you have competition among similar products. Your argument seems to suggest that the only competition necessary is that between who can reach an invention first (in order to obtain a monopoly on it).

    We have competition between Intel and AMD over very similar products, do we not? Yet these two companies pursue patents by the truckload. Somehow our “tyrannical” patent system hasn’t prevented competition between them, and if anything, it’s promoted it – to the incaclulable benefit of consumers everywhere.

    thirteen28 (1da714)

  17. Honestly, after reading through the case a bit more, I’m really wondering what all the fuss of the original post is about. The patent was rendered unenforceable (admittedly, due to inequitable conduct), was invalidated due to obviousness, and a judgement of non-infringement was upheld.

    Further, if you read the section regarding inequitable conduct, it’s highly questionable whether the patent would have ever issued had the prior sales been disclosed as required. The PTO cannot be blamed for issuing the patent without this knowledge, as they more or less have to assume the applicant is acting in good faith.

    If anything, this looks like a case where the legal system did it’s job as intended, as it managed to ferret out a patent that was issued at least in part based on an omission of material facts that constituted inequitable conduct, it was found obvious in light of the prior art sales and thus invalidated, and the judgement of non-infringement was upheld. In short, justice was served.

    That’s a far cry from “tyranny”.

    thirteen28 (1da714)

  18. Yeah develope a new type of large pizza and the jerks from CSPI will file suit to have stupid warning labels put on them we should put warning labels on those CSPI jerks instead

    krazy kagu (6a69d6)

  19. Justin:

    Please note that my response comment #14 above was held for moderating for a bit.

    It’s now viewable, so I hope you notice it’s there, even though you already read comments more recent than mine!

    Dafydd

    Dafydd (445647)

  20. Justin:

    I’ll comment on the case. It appeared to me that the patent was held invalid for a couple of reasons. One was inequitable conduct. The patentee failed to relate material facts to the Examiner that would have influenced the Examiner’s opinion of patentability. Another was the on-sale bar. The patentee market-tested the dots more than one year before he applied for the patent. Also note, the court found that the competitor did NOT literally infringe the claims.

    That’s three different doctrines used to hold the defendant not liable – two to revoke the rights of the patent holder and one to twist the knife in and say, “even if you had the rights, they wouldn’t help you here.” Not exactly supportive of your “broad intellectual property scheme” argument, in either acquiring the rights or enforcing them.

    Go back and read that claim on page 3. A reading of the claim using the common meanings of the words is fairly narrow in scope of protection; it’s hard to accidentally perform that method, and there are lots of things you could do, and not do, to avoid performing that exact method. And reading the claim using the meanings defined in the patent results in a ridiculously narrow scope: those “beads” mean “a small round ball or round drop.” The defendants didn’t infringe the claim because their process produced “irregularly shaped particles”, not just round balls or drops. See how that is ridiculously narrow protection? It would be hard to infringe that claim if you tried.

    The narrow scope of the claim was a result of the examination process applicants must go through when trying to get a patent. The applicant submits his application describing and claiming the invention. The examiner searches the prior art which is every written document in existence, among other things; they concentrate their search in the USPTO database of over 7 million patents. The examiner uses the closest prior art to reject all of the applicant’s claims (in 99+% of the cases). The applicant must then convince the examiner that his invention is different than all of the prior art, and/or narrow the scope of his claims. At a cost of thousands of dollars per interaction.

    And. Your protection lasts 20 years, max. And you get that protection for fully disclosing how to make and use your invention. We want to encourage inventors to invent and disclose, right?

    And then there’s than giant sucking sound. That’s the profits of all the intellectual property holders in America going to China. Not a whole lot of protection in the most populous nation on the planet, and lots of other nations; though we have decent agreements with Europe.

    But hey, that was just a bad example of broad intellectual property schemes. A better one would have been the Disney Company successfully lobbying Congress over the years to keep extending the copyright term (can you blame them for wanting to keep Mickey out of porn movies?).

    On the other hand, copyright protection is worth less and less every day as a practical matter, thanks to the power of the internet, so it’s not such a great example either.

    Trademarks? That’s more consumer protection than intellectual property.

    Well crap. I just read Part I (Part II is behind the Times). Did you get beat up by a patent when you were a kid, or what?

    And that looks like another bad example of “broad patent regimes.” I could argue that especially in the drug field that patents are good. We like drugs a lot. They spend lots(!) of money on R&D. It’s comparatively very cheap, and easy, to make the drug once it’s discovered. If you don’t give the drug companies protection, they won’t invest in R&D, and we don’t want that.

    And yes, it IS ironic that the generic company created a new innovation; they usually just stamp out the pills, they don’t do R&D. Note the innovation: combining three pills into one.

    And I don’t agree that broad patent regimes always stifle competition and innovation. I’d argue they increase innovation by ensuring that innovators get rewarded for thier innovations, and they stifle unfair competition.

    The Patent Avenger

    jb (09983d)

  21. Two more things. You mispelled recipes, and you can’t patent recipes. They’re all obvious.

    jb (09983d)

  22. Thanks for the informative post

    Law News (4f8f8f)


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