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“Earth and Table”—Lane Powell's food, beverage, and hospitality law reporter

Your Pacific Northwest Law Firm™

Starlet Marketing, Patenting and Branding of the California Artichoke

Posted in Food Labeling and Packaging, Fresh Vegetable Produce, Patents and Food Technology, Plant Patenting, Trademarks and Food Technology

starlet1How do you tempt someone to trim, steam (or boil) artichokes and scrape spiny artichoke leaves with their front teeth?

Here’s an easy answer.  Crown a newly minted Marilyn Monroe as Castroville’s first Artichoke Queen in February 1948.[1]  Chances are—you’d gnaw on anything she promotes with her magnetic smile.

Californians certainly followed Norma Jeane’s lead.  In 2013, California proclaimed the artichoke as its state vegetable.  In fact, 99% of the nation’s crop is grown on this strip of land angled against the Pacific.[2]

Transforming a somewhat user-unfriendly vegetable into a staple of the American diet is a more confounding matter.  This article examines innovative patenting, branding and merchandising efforts associated with this superfood thistle.[3] Continue Reading

The Genetics of Date Palm Patenting

Posted in Patent Prosecution, Patents and Food Technology, Plant Patenting, Sensory Marketing, Trademarks and Food Technology

 

Date palm imageYou’re driving south out of Indio along the Grapefruit Boulevard towards Thermal and Mecca because their names sound promising.  A parched desert plain extends to your left, leading up to the austere ridgelines of Joshua Tree National Park.  A shimmering Salton Sea lies ahead.

An oasis of date palms emerges out of nowhere on your passenger side.  You’ve just entered the Coachella Valley’s epicenter of United States date production.

If you’re savvy, you’ll stop at the Oasis Date Gardens and head directly to the sampling room.  And if you’re lucky, a date variety you’ve never heard of before—the black eight ball—will send your taste buds into mild ecstasy.  Alas, the 8-ball’s appearance on the scene is too short (December/January) and its quantity too sparse to support a mail order business.  You’ll regret not buying more of this connoisseur’s delicacy when you had the chance.

The crucial agri-processing issue confronting all date growers is one of gender discrimination.  Recent published patent applications suggest the problem and solution, e.g., “Genetics of Gender Discrimination in Date Palm,”[1] and “Molecular Markers and Methods for Early Sex Determination in Date Palms.”[2]  This article examines the patent eligibility issue generated by these patent applications in light of recent Supreme Court cases. Continue Reading

Patenting the Avocado: A California Story with a Classic Recipe

Posted in Patents and Food Technology, Trademarks and Food Technology

Avocado image 1Guacamole and chips are the ultimate in Super Bowl Sunday comfort food nowadays.  During the Panthers/Broncos game, the California Avocado Commission tweeted its own commentary, offering recipes that paired avocados with food and beverage products being featured in advertising campaigns.[1]

Avocados quintessentially define California cuisine.  Yet, they are a relative newcomer to the Golden State.  Aztec culture favored avocados, but it wasn’t until 1871 that Judge R.B. Ord, of Santa Barbara, successfully grew them from trees he obtained from Mexico.[2]

Much earlier in the vast machinations of the Columbian food exchange, the personal physician of England’s King Charles II described the avocado in 1672 as one of the “most rare and pleasant fruits of [Jamaica].  It nourisheth and strengtheneth the body, corroborating the spirits and procuring lust exceedingly.”[3]

Perhaps babies were conceived on Super Bowl Sunday because of the avocado’s aphrodisiacal qualities!

The California mother of all avocados—the Hass avocado—is the subject of U.S. Plant Patent 139 granted in August 1935.  This article tells its story.  Recent avocado patent developments are also highlighted and a classic recipe for Avocado San Andreas may whet your mental palate. Continue Reading

Novel Potato Chips: The Patentable Art of Processing Potatoes

Posted in Patents and Food Technology, Trademarks and Food Technology

Potatoes blogDuring a 1911 journey—in which they would discover Machu Picchu—Hiram Bingham’s exploration party came across some native Peruvians who “lived almost entirely on gruel made from chuño, frozen bitter potatoes.  Little else than potatoes will grow at 14,000 feet above the sea.”[1]  As the accompanying photograph shows, chuño can still be purchased in farmers markets in the Cusco region of Peru.[2]

For millennia, those living in the Andean highland regions of Bolivia and Peru carefully tended to and cultivated over 3000 varieties of potatoes, many of which remain unknown to our collective palates today.  The Central Restaurante in Lima, Peru, however, features chuño recipes in its menu offerings.

Chef Virgilio Martinez leaves the “potatoes in the snow overnight; by the time the sun comes up, the potatoes have dried out.  ‘When you see them, they look like white-peeled potatoes, like flour or something.  They aren’t heavy at all, either, because they lose their water, Martinez says, also noting they can be stored for up to 10 years.”[3]

Like their Andean predecessors, modern day inventors continue to slice, dice, freeze, bake, dehydrate, fry and otherwise manipulate the characteristics of the humble potato in patentable ways.  This brief article examines some recently issued U.S. patents to determine what they disclose about the technological art of processing potatoes. Continue Reading

Patenting the Potato: “Not All Taters are Created Equal”

Posted in Food Labeling, Patents and Food Technology, Trademarks and Food Technology

blog potatoesWearing a McDonald’s blue garrison-style hat—red hats signified management—I often worked at the french fry station during my pimply high school years in the 1970s.  If you had asked me anything about the julienned potatoes I watched bubbling around in hot oil, I would have given you a clipped, teenage response, “I dunno.”  I had more important things on my mind, like my girlfriend Lynn who worked at the local Dairy Queen.

Forty years later, I know precisely what I would salt, scoop and funnel into paper containers in seemingly never-ending quantities: the historic Russet Burbank potato.  Luther Burbank—the (once) famous “Wizard of Horticulture”—developed this potato variety in 1870.  It would become the mainstay of the McDonald’s franchise empire, with over billions and billions sold.

Like other formerly indistinguishable fruit and vegetable commodities, potatoes are now morphing into a plethora of trademarked, patentable varieties.  The most recent variety to make news headlines is the Innate™ potato, a genetically modified Russet Burbank potato owned by the J.R. Simplot Company.  You won’t find them at McDonald’s anytime soon though.  “McDonald’s USA does not source GMO potatoes, nor do we have current plans to change our sourcing practices.”[1]

This brief article focuses on the history of potatoes and their patentable status in the United States.  As part of this discussion, the poor market reception potatoes first received during the Columbian Exchange is compared to the predictable consumer angst associated with the Innate™ potato’s genetic engineering. Continue Reading

Transgenic Salmon: A Primer on FDA Food Safety Regulations

Posted in FDA Regulation, Food Labeling, Patents and Food Technology, Trademarks and Food Technology

blog post first pictureWhen Meriwether Lewis tasted his first roasted morsel of a fresh Chinook salmon at a Shoshone camp along the Lemhi River (in modern day Idaho), he ate it with “very good relish.”  It convinced him that “we were on the waters of the Pacific Ocean.”

For centuries, native tribes and later settlers in the Pacific Northwest have revered the Chinook (or King) salmon as an iconic symbol of life and regeneration.  Celilo Falls, along the Columbia River bordering Washington and Oregon, was once the greatest salmon fishing site in North America, and perhaps the world.

Some 200 years later, the Atlantic and Pacific salmon fisheries have merged in the form of the first transgenic salmon.  An AquAdvantage® salmon[1] is what you create when you take an Atlantic salmon and insert a Chinook salmon growth hormone gene and an ocean pout fish regulatory gene sequence into it through the use of recombinant DNA technology.  An AquAdvantage salmon can grow to market size in land-based tank farms in half the time of conventional salmon.  It is never, ever supposed to swim in either ocean.

Whether or not the AquAdvantage salmon achieves final regulatory approval and market acceptance, its current fate squarely pits the much vaunted concept of sustainability against the other two most heralded words in the modern food vocabulary, natural and organic.

This article provides a brief survey of how the FDA evaluates the food safety of transgenic animals as “new animal drugs.”  It then discusses an alternative, more rigorous means of assessing genetically altered animals as “food additives,” the analytical approach favored by Food & Water Watch in a recently filed FDA citizen’s petition.  It closes with an animal scientist’s perspective regarding the sustainability of transgenic animals as food sources. Continue Reading

Assessing the Validity of Food Processing Patents, Post-Alice

Posted in Patent Litigation, Patents and Food Technology

Patent eligibility is in a state of flux.  Software and business method innovations challenge the boundary of what is patentable under U.S. law.  That dividing line is crossed when inventors claim exclusive rights in what really amount to “laws of nature, natural phenomena or abstract ideas.”  In a series of recent cases, the Supreme Court construed these three implied judicial exceptions to patent eligibility.  Alice Corp. v. CLS Bank Int’l is its most recent pronouncement bracketing patent rights.

Since software and computerized business methods now dominate and regulate many aspects of our industrialized food supply chain, how will already-issued food processing patents fare in this patent eligibility battle royale, post-Alice?  This article addresses that basic question.  A touchstone for this analysis will be a recently invalidated “Meal Builder” patent, a “computerized method and system for diet-related behavior analysis, training and planning.” See Dietgoal Innovations LLC v. Chipotle Mexican Grill, Inc. (slip opinion). Continue Reading

Trademarks as a Barometer of Change: A Pop Quiz

Posted in Food Labeling, Trademark Litigation, Trademarks and Food Technology

Designed to appeal and speak to the customers of a specific time and place, trademarks can become hallmarks of a bygone era.

The controversy surrounding the use of the REDSKINS trademark and logo shows just how much the public reaction to symbols can alter and shift over time.  In a decision now on appeal, the United States Trademark Trial and Appeal Board cancelled the REDSKINS trademark registrations, ruling that they were considered disparaging and offensive to approximately one out of three native Americans when they were registered.

Stepping back from this present day dispute, pioneer and native American symbology once captured the popular imagination in the early 20th century.  Businesses sought to capitalize on romantic visions of western expansion by adopting symbols recalling the Old West.  Once those nostalgic reference points lost commercial traction with consumers, these companies changed shopworn symbols of brand identity or perhaps the companies and products faded away altogether from the marketplace.

How many of us can now connect the following former trademark symbols referencing the Old West with their original producer and the products they were meant to brand? This brief reprise underscores how dynamic trademark symbols are in adjusting to the tastes and sensibilities of each new generation of American consumers.  Answers follow at the end.

1.

2.

Continue Reading

Breaking Up is Hard to Do: The California Strawberry Commission’s Claim to University Plant Breeding Research

Posted in Patent Litigation, Patents and Food Technology

Plant patents are often overshadowed by their more well-known utility and design patent counterparts under U.S. law.  Yet, with the increasing branding and differentiation of agricultural commodities, plant patent rights drive key investment and innovation opportunities—especially in that mother lode of all agricultural economies, California.  A case slowly making its way through California’s judicial system highlights the important role of strawberry plant patents and the nature of University research ownership rights.

Just the Facts, Ma’am

California Strawberry Commission (“CSC”) vs. the Regents of the University of California was filed in October 2013 seeking to obtain and reproduce “copies” of strawberry “germplasms” generated through the University of California, Davis’s research work related to improved and patented varieties of strawberries.  The living tissue of a cultivar is sometimes referred to as its “germplasm.”  The CSC bases its claim to the University’s strawberry cultivar “germplasms” on the fact that the CSC (comprised of private growers) helped fund the University’s strawberry cultivar research program for many years through research agreements.  Since the early 1990s, the University would collect money from the CSC to defray research costs ($350,000 a year most recently).

As a quid pro quo for this research funding assistance, the University would grant California strawberry growers two years of exclusive use of the strawberry cultivars it licensed to them—giving them a competitive head start on growers from other areas.  After two years, The University would charge California growers a reduced license fee compared to what strawberry growers outside of California otherwise would be required to pay.

By all accounts, the University’s research program has been extraordinarily successful: over 80% of strawberries grown in the U.S. are derived from UC Davis’s strawberry cultivars, and over 60% worldwide.  In the past nine years, the University’s received over $50 million in licensing revenues.[1]

But in 2013, this strawberry cornucopia fractured at its research seams.  UC Davis’s two leading strawberry cultivar researchers—Douglas Shaw and Kirk Larson—announced over a year ago that they would be leaving UC Davis to form their own strawberry research company.  Perhaps fearing that the University would disband its research program and cut these former researchers a sweetheart deal, the CSC filed its lawsuit to protect an alleged property interest in the fruits (pardon the pun) of the University’s research program.  The University has since disavowed any intent to disband its strawberry cultivar research efforts or to favor its former plant breeding researchers over others. Continue Reading

Not-So-Sweet Smell of Success: When Does Ambient Scent Marketing Become a Deceptive Trade Practice?

Posted in False Advertising, Sensory Marketing, Unfair and Deceptive Trade Practices

Scent marketing is as old as a realtor baking cookies in a house up for sale and as new as Oscar Mayer’s “bacon” alarm clock.  Harnessing the primal power of smell represents a final frontier of subliminal advertising.

Appealing to our sense of smell excites marketers precisely because smells trigger an immediate emotional response by a consumer—rather than a thoughtful one.  “With all other senses, you think before you respond, but with scent, your brain responds before you think,” per Pam Scholder Ellen, a Georgia State University marketing professor.

The phrase scent marketing is defined as using scents “to set a mood, promote products or position a brand.”[1]  While scents most often are primary product attributes (e.g., perfumes and deodorizers) or secondary product attributes (e.g., the smell of Ivory soap or Play-Doh), the use of ambient scent marketing is growing fast.  Airlines, hotels, retail stores, and casinos are increasingly injecting scents—sensory signatures—into the environment’s atmospherics, believing this will enhance the customers’ mood, translating into more favorable evaluations and higher sales.[2]

Because scents invade our space simply as a function of our breathing, consumers cannot easily escape ambient scent marketing. We can more readily control or avoid looking at or hearing marketing messages.  In this regard, scent marketing undercuts a consumer’s “perceptual” defenses.  In further contrast to scent marketing, sights and sounds are processed by more analytical parts of our brains; whereas olfaction is “our phylogenetically oldest and most primitive sense.”[3]

A consumer’s inability to avoid or discern ambient scent marketing or process it intellectually raises a novel legal issue: when does foisting ambient scents on consumers become a deceptive trade practice?  Continue Reading