Intellectual Property for Your Cuisine

25 February 2011

Introduction

Getting patent for your invention may not be a cakewalk, yet it is possible for you to get a patent for your cake. This is literally true, if your cake fulfils the requirements for grant of a patent. How often people have wondered if they could patent their favourite dishes and their recipes, they could be minting money by tantalizing the taste buds of millions. It is another matter that they may not have any idea of the intricacies of the patenting world.

Our foods cover a wide range of technical areas from different plant varieties, fruits, vegetables and other edible products such as nuts and their methods of preparation, preservation, processing with unique and differentiated recipes to make them eatables in variety of forms which tend to have both domestic as well as commercial use. At every stage in this chain, human ingenuity plays an important role and hence all of these subjects become amenable to intellectual property protection. Can I get intellectual property protection for my recipe, is therefore all too often quite an expected query. The remainder of this article deals with it in a broader sense.

Suits on Piracy of Menu & Recipes


Law suits by restaurant owners alleging piracy of menu, recipes and dishes by former chefs by come to light quite often which are regarded by the courts as misappropriation of intellectual property. In June 2007, Rebecca Charles, the owner of a New York restaurant, 'Pearl' dragged its former chef with such allegations. The key allegation that made headlines was that the recipe of Pearl's signature dish known as 'Casear Salad' was blatantly copied. The settlement was finally arrived at out of the court, but many regarded this law suit as the first of its kind. In the culinary industry, the owners of the restaurants and food joints have traditionally defended particular aspects of their restaurants invoking the concepts of intellectual property, but few had dragged the legal fight in court rooms with strong arguments on intellectual property theft in absolute terms.

Many high profile chefs are now household names in today's world of high mobility, and many of them are significant innovators attracting investors to build businesses around their creations. It is natural, therefore, for such master chefs and their investors to demand intellectual property protection. As competition and the cost of opening new restaurants continue skyrocketing, experts predict an increase in lawsuits similar to that mentioned above.

Cooking - The Derivative Art

A sizable section of people in culinary industry, however, view cooking as a derivative art and beyond the confines of intellectual property supporting and working in an open-source model and drawing inspiration from a variety of sources. Many renowned and creative chefs believe that "culinary traditions are collective, cumulative inventions, a heritage created by hundreds of generations of cooks." Much of the fun in food, especially in social gatherings, is in sharing the art of cooking and the recipes. Many professional associations of chefs also prescribe ethical guidelines for members not to infringe upon the intellectual property belonging to others for their own financial or professional advantage.


Molecular Gastronomy - The Science of Novel Cuisine

Despite ethical guidelines of the culinary profession and cherished goal of evolving noteworthy cuisine through traditional learning, sharing and internships in an open source model, there is a growing trend now to bring in a convergence of cooking and technology and demand increased intellectual property protections for the new creations. This upcoming popular style of high-technology cooking using scientific techniques and sophisticated equipment akin to material handling in scientific laboratories is known as "molecular gastronomy" and perhaps adequately justifies suitable intellectual property protection. The techniques may include using lasers, micro-wave, flash freezing with liquid nitrogen, treating emulsions with ultrasound, chemical powders, and enzymes to make unique and imaginative foods that could no longer be regarded as derivative cuisine.

The term 'Molecular Gastronomy (MG)' is stated to have been coined in 1988 by an Oxford Professor who became interested in applying his scientific knowledge to chemical transformations that take place during cooking. This new science of cooking seems to be thriving, however, in France since then where MG workshops are conducted periodically and attended by chefs, scientists and food technologists together. While food industry representatives usually discuss culinary matters that they often find intriguing such as how to avoid cracks on macaroons, the chemists and scientists usually discuss the molecular basis of various transformations such as protein or collagen structures at different temperatures. The molecular basis of food science is not only giving rise to new knowledge and insight about the foods we cook in a known way but also to variety of new foods with hitherto different tastes.

Innovative Chocolate Dispersion Cake: One notable example of the MG research is the 'Chocolate Dispersion Cake' developed by Herve' This (pronounced as 'tis'), who is regarded as a pioneer and father of research in molecular gastronomy. Accordingly, a small amount of chocolate is melted first and then added to egg white while whipping the mixture when the chocolate melt is below 61C. This is finally placed in a microwave oven for one minute. The initial dispersion of cocoa butter turned into a semi-solid mass or chemical gel, on heating - like a chocolate cake without flour. Using his knowledge about how the network of protein molecules holds the chocolate droplets in a jellified emulsion through microscopic studies, This manages the dispersion of chocolate twice: first in the emulsion and then in the gel. The resulting cake, according to him, has a powerful aroma of chocolate and a 'very tender texture'. It is not known if any intellectual property was ever sought for such a product.

Herve' This who has authored countless scientific publications and popular articles and runs a blog on the internet is, nevertheless, a popular TV personality by now. The details of his work and passion are described on Wikipeadia and a number videos depicting him as a crazy scientist are doing the rounds on the internet. A link to his youtube video is (here). He has also been dubbed as 'a man who unboiled the egg' and discovered that the perfect temperature for cooking an egg is around 65C, when the white coagulates, but not the yolk. How the cocoa can easily be dispersed in a mixture of alcohol and water, which is rather non-dispersible in plain water can also be seen in a video, whose link is provided here (Cocoa powder does not disperse easily in water!). - (Chocolate Dispersion)

Surge for New Experimental Foods

Many known and hitherto unknown substances are appearing as worthy of experimenting for developing new food products or managing the tastes, textures and flavours of known and traditional foods. Hydrocolloids, for example, a class of compounds and substances that are used as additives for forming gels and thickening agents, stabilizing foams, emulsions and dispersions and preventing crystallization of saturated water or sugar solutions are being re-invented for newer uses. Agar, gelatine, guar gum, xanthan are some of the well known hydrocolloids. A blog named as 'Khymos' which in Greek refers to 'Syrups' is a repository of information on hydrocolloids. A valuable compilation of hydrocolloid recipes is available in pdf format and can be downloaded free from the blog site (Texture - A Hydrocolloid Recipe Collection).

According to one report, Miraculin, the extract of a West African fruit and many other such substances are attracting much attention of researchers of gastronomy as taste modifiers and enhancers. Miraculin is obtained through freeze-drying the flesh of the fruit and is available as a lumpy powder in dull red colour. It is not sweet though, but makes the sour foods taste sweet. This is said to be doing so by being able to trick the taste buds into misreporting the flavour of the foods. The discovery of such substances is likely to manipulate the tastes of many of our foods in future.

The interest and understanding of chemical and physical basis of cooking, however, is not all too new phenomenon. An excellent treatise on the subject was published as early as 1937 whose reference is given below in bibliography. The book is now in second edition and accessible online for anyone who is keen to learn more and improve his cooking skills. The principal function of this volume is to present the knowledge of food preparation and cookery processes from a chemical and physical basis. It presents the knowledge and data on cookery collected from around the world and covers a wide range of subjects, i.e., chemistry of colloids, their properties viz., fluidity, viscosity, and plasticity and dispersion in food, role of electrolytes, and coagulation of proteins, energetic, sugars: different types and properties viz. solubility, melting point etc., bound and free water (i.e., the extent of hydrogen bonding), crystallisation, fondants (i.e., sugar syrups), fudge (i.e., the extent of crystal in fondant), caramels, ice-creams, plant acids, pigments, enzymes, sulphur compounds of plants, flavours, cellulose, legumes, pectin, gelatine, glue etc.

Possible Protection of Intellectual Property for Foods and Cuisine


Copyright

As per copyright laws in most countries, mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. To be copyrightable, the recipe must accompany substantial literary expression in the form of an explanation or directions, such as in a cookbook. Thus, no significant competitive advantage can be drawn by chefs from copyright law for their creations. Many, however, believe that a truly magnificent dish created by a chef can hardly be stolen by anyone else. They feel that a recipe alone is sufficient for a skilled cook to prepare almost any dish. However, individual cooking techniques, and the manner in which ingredients are used coupled with the experience can result into vastly different dishes, which cannot be reduced to writing and also can not be easily stolen.

No significant infringement claims are known to have been sought either on the basis of copyright of recipes. Moreover, it may not be easy in most cases to argue that the copied recipe or material was not really in public domain before or after the copyright. Due to sharing norms prevalent in the culinary industry, an infinite number of dishes and their variants are in the public domain all the time and belong to everyone. The signature dish 'Casear Salad' of Rebecca Charles mentioned above is also stated to have been learnt by her from her mother. Thus, the bar for originality under copyright law is low and so is the protection for creative recipes through this mode.


Trademark and Trade Dress

Trademark is the most widely used form of intellectual property in any business. A trademark (or simply 'mark') could be any word, name, symbol, device, or combination thereof, which a business registers to indicate the source of his products and services to distinguish from other manufacturers or sellers in the same trade. Marks may be obtained for the entire business as a whole or for specific products or services for branding and marketing purposes.

Trade dress is yet another intellectual property form that is widely used in all businesses, including bakery, confectionary, fast food and other food related services. It refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. In culinary businesses, signature packagings are quite common with their signature dishes. Traditionally, trade dress applied to the overall appearance of labels, wrapping or containers in which the product was offered for sale or consumption. Today, however, this has come to assume a much stronger definition implying that the combination of various elements of trade dress creates a visual image for the consumer. The trade dress can include features such as size, shape, colour, textures, or graphics and is registrable.

It is important to realise that neither trade dress nor trademark laws protect an underlying product or service, only the way in which these are presented to consumers. However, like trademarks, a product's trade dress can be legally protected in the US under the Lanham Act. In India, though, no specific provision exists for registration of a trade dress; the amended Trademark Act of 1999 that came into being in 2003 does cover essential elements of packaging along with mark. The Indian courts have, however, been recognising the importance of trade dress in many a disputes even prior to the amended act under common law.

Trade dress seems to be most effectively employed in wines and spirits businesses. Trade dress weather registered or not seems to be an effective tool to protect intellectual property in the culinary business. Trademark and trade dress infringement cases between rival groups in eateries, food joints, restaurants and many other areas are quite common these days. In order to succeed on a claim of infringement, one must be able to argue convincingly that the alleged infringer's actions (.i.e., employing similar dress) are likely to cause consumer confusion. Therefore trade dress by itself needs to be inherently distinctive and should not depend on functional features.


Patents

Patents have been generally favoured for all new inventions and innovative creations including truly new cuisine. Based on the fundamental requirements of patent grant, the new cuisines and culinary creations will have to be judged on the basis of i) novelty / prior art, ii) non-obviousness and iii) industrial use. Food companies and restaurant chains are commonly seen to obtain patents to protect their edible creations, but a majority of chefs are found to ignore the system as they see not much merit in the system.

Like in patent protection to inventions in other fields, the claims of the new culinary creations are also required to be precisely defined on the basis of incremental innovations and inventive steps. This could very often result into vary narrow claims, depending on how these are stated. With plenty of equivalent substitute ingredients available, no worthwhile protection against copy-cat recipes using alternative ingredients can be enforced. In 1989, a typical case of infringement of a patent held by Procter & Gamble ("P&G") for a recipe and process of making a dual textured cookie that was "crispy on the outside and chewy on the inside" came to light. The defendants argued, in part, that P&G's patent was invalid as anticipated by a recipe published in a 1968 cookbook. Thus, many innovative culinary creations also fail to get due intellectual property from patent system for the simple reason that the requisite novelty feature is fairly difficult to prove. Most successful chefs also believe that they rose on the shoulders of chefs who came before them.

The non-obviousness requirements as well as high cost of patenting are also major bottlenecks on the way of exploitation of patent system for culinary creations.

As opposed to conventional avant-garde chefs, researchers in MG stand a better and exciting opportunity to take shelter under the patent systems for their inventions since many of their creations tend to be absolutely novel. The title of a recently published patent application (CA2711067A1 dated 3 Feb 2011) which reads like, 'Method of Processing Food Material using a Pulsed Laser Beam' gives a fair indication of the kind of inventions we are likely to see from this field in future.


Trade Secrets

Trade Secrets of recipes and specific cooking techniques are perhaps the most favoured route for exploiting the intellectual property for those who are keen to commercialise their creations. In many countries, it is possible to obtain legal protection to such business secrets but there is no specific law in India that protects trade secrets and confidential information. These are safe guarded generally by appropriate agreements with employees under the contract law or through the equitable doctrine of breach of confidentiality. Indian courts have usually upheld trade secret protection in favour of the intellectual property owner.


Geographical Indications

Geographical Indications (GIs) are signs used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Many food preparations, besides agricultural products and manufactured products, mainly handicrafts that have acquired distinct recognition associated with their place of origin and have thus been granted GI status. Dharwad Pedha, Tirupathi Laddu, Goan Feni, Hyderabadi Haleem and Scotch Whisky are some of the food items that have acquired GI status in India. There are many other unique food items that have been granted similar status in other countries around the world. A detailed treatment on GIs was provided in one of our earlier articles entitled, 'Uganda Chocolates'.

GIs typically convey an assurance of quality and distinctiveness essentially attributable to the origin as defined by geographical locality, region or country of the product. GI is also a form of intellectual property which is granted to the produce of entire geographical location on collective basis and can not be thus exploited for individual innovations.


Conclusion

We have seen that the world of food has arrived at a stage where one of the oldest arts, i.e., cooking is being passionately manipulated by the latest and modern concepts of science to turn out ground breaking dishes of different tastes the mankind has ever known or tasted. This makes a strong case for strengthening intellectual property provisions so that chefs, scientists and entrepreneurs could unhesitatingly give utilitarian expression to their creations and discoveries. A seven billion global population of indulgent consumers, anyway, ensures a great market for these new ventures.


Further Reading

  1. Protecting Cuisine Under The Rubric of Intellectual Property Law: Should The Law Play A Bigger Role In The Kitchen? by Emily Cunningham, Journal of High Technology Law (2009)

  2. Cooking with Chemistry by Maria Burke, Royal Society of Chemistry

  3. Experimental Cookery From The Chemical And Physical Standpoint by Belle Lowe, John Wiley & Sons, 1937
  4. FreePatentsOnline.com

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