The Taste of Patentable Innovations

Most chefs would never think of downloading recipes from the
United States Patent and Trademark Office (USPTO) patent database. To quote a
Martha Stewart catchphrase, thats probably a good thing. Patentese can
collide mightily with the common sense of cooking, as the Chef America v.
Lamb-Wesson case demonstrated. That 2004 case involved a dough-producing
process, which included a step of heating the resulting batter-coated dough to
a temperature in the range of 400 F to 850 F for a period of time ranging
from 10 seconds to 5 minutes to first set the batter and melt the shortening
flakes.

As savvy cooks know, if you follow this baking step
literally, the resulting product resembles a charcoal briquette. However,
patent claims mean exactly what they say, according to Chef America: The
dough is to be heated to the specified temperature. Nothing even remotely
suggests that what is to be heated is not the dough but the air inside the oven
in which the heating takes place. Indeed, the claim does not even refer to an
oven.

While the USPTO isnt on most peoples recipe Rolodex,
patents offer an intriguing window into potential market trends. Peculiar food
innovations are even emanating from our most prestigious universities, such as
a new method for carbonated ice cream invented in MITs Cryogenic Engineering
Laboratory. This patented concoction of an emulsified liquid mixture of liquid
carbon dioxide and dessert mix offers to combine the chill of ice cream with
explosive fizz of soda pop.

Closer to home, Seattle entrepreneurs sought to tackle the
age-old problem of how to get your toddlers to eat their peas and carrots
instead of unabashedly throwing them back in your face or gleefully smashing
them into a pulp with their little fists. A United States patent application
(published in May 2010) discloses a method for sneaking healthy vegetables (in
powdered form) into classic childhood favorites such as macaroni and cheese or
Rice Krispies Treats. The owner of this patent application is a local startup
company, Full Tank Foods.

Full Tanks patent application is the intellectual property
counterpart to the copyright infringement battle royal between Missy Chase
Lapine, the author of The Sneaky Chef: Simple Strategies for Hiding Healthy
Foods in Kids Favorite Meals, and Jessica Seinfeld (Jerrys wife), the author
of Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food. In
the end, the Second Circuit Court of Appeals affirmed the summary judgment
dismissal of Lapines vegetable plagiarism claims, stating, Stockpiling
vegetable purees for covert use in childrens food is an idea that cannot be
copyrighted.

Whether Full Tanks method for enhancing a nutritional
value of a target food product without significantly changing an established
sensory profile of the target food will survive USPTO patent examination is
questionable for financial reasons. The company had a promising run in its
early startup phase. Its vegetable-infused frozen entrees made their way onto
the store shelves of Whole Foods Market by 2008. But then the Great Recession
struck and Full Tanks fortunes foundered. It simply may have no money to pay
for the patent prosecution effort.

Much better funded is Nathan Myhrvolds ongoing research
taking place in Intellectual Ventures kitchen laboratory. A 2,400-page tome
Myhrvold is writing with two chefs, Modernist Cuisine: The Art and Science of
Cooking, is already rocking the professional food world with its $625
prepublication list price. Intellectual Ventures test kitchen discoveries
could lead to the patenting of cooking devices and methods that will make
Roncos once-patented Chop-o-Matic look like childs play.

Paul D. Swanson is a shareholder and member
of Lane Powells Intellectual Property Practice Group, where his practice is
primarily devoted to litigating patent, trademark, copyright, unfair competition,
software development and trade secret law disputes. He regularly speaks and authors on intellectual property
issues, and is a principal contributor to the firms Patent Practice
Professional Liability Reporter blog. He can
be reached at [email protected] or 206.223.7391.