Hedonism is the pursuit of pleasure and sensual self-indulgence. When applied to food, we conjure up high-priced luxuries like the Italian white Alba truffle—the “Mozart of mushrooms”—or the French black Périgord truffle—the “black magic apple of love.”

Hedonic food consumption is vivid—hence memorable. As we chew and swallow fine foodstuffs, we express satisfaction in facial expressions and vocal utterances. When hosts of the Food Channel’s The Best Thing I Ever Ate reminisce about glorious meals, their enthusiasm quaffs over into wide-eyed grins, “oohs and ahhs,” and the licking of lips.

Eating and drinking well creates neuronal memory traces. Put more artfully by the poet/novelist Jim Harrison, “goose bumps come with the divine conjunction of food and wine.”[1]  Where triggered by food nostalgia, copyrightable expression flies off the page and screen. This post examines how dining on truffles can transport you in the writer’s imagination.

Continue Reading The Copyrightable Firepower of Hedonic Food Consumption

Richard Olney’s The French Menu Cookbook (1970) and Simple French Food (1974) profoundly shaped American food trends in the 20th century—mostly behind the scenes. They inspired Alice Waters as she launched Chez Panisse, igniting a fresh California cuisine revolution. She, James Beard and Julia Child would all make regular pilgrimages to Olney’s hermitage dwelling in Provence to dine with this genius of the palate.

Success spawns copycats. The culprit here is Richard Nelson’s American Cooking (1983). It is filled with recipes copied verbatim from Simple French Food (and other cookbooks). When food journalists uncovered Nelson’s pilfering, a plagiarism firestorm ensued. But did his blatant recipe copying violate U.S. copyright laws? The answer is nuanced.

Careless recipe gathering derailed Nelson’s once promising career. This post examines the merits of a copyright lawsuit Olney filed to protect his professional reputation.

Continue Reading The Recipe Copyright Title Bout of the 20th Century: Olney vs. Nelson vs. Beard

Whoever invents or discovers any new and useful composition of matter may potentially obtain a United States patent. When it comes to food compositions, however, this seemingly broad scope of patentability is judicially tempered.

Novel foods are not patentable unless they demonstrate a “coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function.” In reality, patent applicants find it difficult to satisfy this scientific-sounding rule.

Even if an inventor could hurdle this patenting bar, who would want to eat food whose ingredients coact or cooperate unexpectedly?  Food neophobia—a reluctance to ingest novel foods—is characteristic of omnivores, including humans.[1] To ward against automatic rejection of novel food tastes or flavors, successful patentees must marshal abundant marketing prowess.

This post examines why the patent court formulated this food composition rule, how it is being employed by patent examiners and judges, and how savvy brand managers design subliminal retail strategies to counter innate consumer fear of ingesting novel foods.  Patentable vegan burgers illustrate how this marketing process works in action.

Continue Reading The Scientific-Sounding Bar to Patenting Food Compositions and Marketing Around Innate Rejection of Novel Foods

Truffles mushrooms reside in a Holy Grail land of taste preference. They call to mind ancient French banquet meals and rural truffle hunters and their dogs. Scarce and expensive, the truffle industry satisfies market demand by bottling their musky scent in so-called truffle oils.

The Pacific Northwest is an unsung truffle backwater—when compared to the famous truffle growing regions of Périgord, France and Alba, Italy. Most residents never see, smell nor taste our region’s outstanding earthy delicacy, the Oregon black truffle. Lately though, I’ve binged on them, developing a classic neuropsychological food craving.

Why are truffles such high-end luxury goods and how do they induce food cravings? This post confronts these basic questions. Along the way, it offers some practical advice for home cooks preparing truffles for the first time.

Continue Reading On Oregon Black Truffles, Scent Marketing and Neuropsychological Food Cravings

Bourbon Pecan PiePecans are a microcosm of Americana.  “As the Stuart Pecan Company would brag in 1893: ‘We [Americans] have rightfully a monopoly upon the nut.’”[1]

Wild pecan trees proliferate in riverine ecosystems coursing through the southern United States.  Their domesticated, often patented counterparts now satisfy huge consumer demand for these indigenous nuts, once vital to tribal commerce.  Indeed, the name pecan is derived “from an Algonquin word meaning, loosely translated, ‘a nut too hard to crack by hand.’”

Close scrutiny of my favorite bourbon pecan pie recipe offers some unusual insights regarding the importance of plant patents, what copyright originality means as applied to classic recipes, and chef brands tarnished by the #MeToo social movement.  This post cracks open these peculiarly American socio-legal issues.

Wild versus Patented Pecan Trees

To delve into a pecan pie, one must understand its progenitors.  Wild pecan trees tower over other trees as a “climax tree species.”  In record time, this wild hickory plant (Carya illinoinensis) morphed into pecan cultivar orchards that dominate landscapes in Georgia, New Mexico, and other non-native states.

The pecan, however, remained “a wild plant for a much longer time than any other commodified fruit or nut primarily because its wild variety happened to bear fruit that tasted supremely domesticated.”

From the commercial grower’s perspective, applying orchard techniques to cultivate pecans in ecosystems far removed from their natural habitat creates a host of profound production issues.

  • Pecans do not grow true to seed, so grafting trees is the only way to ensure nut quality and consistency.
  • Pecans do not “mast” (i.e., bear nuts) every year, or even every other year sometimes. In addition, an orchard of cultivated pecan trees can take at least eight years to begin masting “at full throttle and as many as fifteen years before they reach peak production.”
  • Domesticated pecan cultivars are susceptible to a host of plant viruses and pests that their wild counterparts can avoid in their natural habitats.

Many of these grower issues can only be solved through inventing or discovering pecan tree varieties with new attributes.  In this regard, one inventor rules this market space: Dr. Darrell Sparks, who is associated with the University of Georgia.  His book, Pecan Cultivars:The Orchard’s Foundation (1992), is the leading authority in this field of commerce.

Sparks’ latest discovery, a pecan tree named ‘Tanner,’ will soon issue in 2018 as his seventh U.S. patent.  He describes its novel contribution:

‘Tanner’ is distinguished from other pecan varieties known to the inventor due to the following unique combination of characteristics: Consistent and acceptable fruit production, small fruit cluster, early nut maturity, large nut producing mammoth kernels with excellent color and high resistance to scab fungus . . . and moderate resistance to black aphid . . . .  ‘Tanner’ will fill in a niche for large nuts similar in size to ‘Desirable’ but with the advantage of earlier maturity and high resistance to scab.

Plant patents tend to have long gestation times, and ‘Tanner’ is no exception.  It originated in 1995 through crossing a ‘Desirable’ pecan tree cultivar as the seed parent with a ‘Pawnee’ cultivar as the pollen parent.

Continue Reading A Bourbon Pecan Pie Fest of Plant Patents, Copyright “Originality” and Soiled Chef Brands

White Alba TrufflesWhite Alba truffles from the Piedmont region of Italy—and black winter truffles from Périgord, France—are a fount of gastronomic legends.

A black truffle and foie gras soup, served with a puff pastry topping, is the signature recipe of the late, great French chef, Paul Bocuse.

My first indelible taste of a White Alba truffle came shaved atop a Carnaroli Risotto Biologico with a Castelmagno Mousse, served at Per Se, Chef Thomas Keller’s restaurant in Manhattan—at $175 per plate (2011 price).

Why do these exotic truffle nuggets captivate our senses in the course of depleting our pocketbook?  Their wafting aroma creates a pheromonic stage for intense consumer demand—expensive to satisfy, at least authentically.  Worldwide commerce in scarce truffles in turn engenders some peculiar and perhaps surprising intellectual property law issues.

“Mozart” and “Black Diamond” Truffles

Truffles are the most precious representatives of goût de terroir (“taste of the earth”) in the world.  They are “the fruiting bodies of mychorrhizal fungi associated principally with the roots of oak trees in forests and oak plantations.”[1] “In general, truffles have no stalk, no gills and its mycelium grows underground.  Rather than having the soft and fragile feature of common mushrooms, mature truffles tend to be firm, dense, and woody.”[2]

When the Italian mycologist, Carlo Vittadini, discovered the Périgord black truffle in 1831, he gave it the scientific name Tuber melanosporum.  Tuber, the genus, is a Latin word meaning “a lump or swelling”; whereas the specific epithet melanosporum means “black spores.”  In French haute cuisine, they are known as “black diamonds” and the “jewel of cookery.”[3]

The White Alba truffle, Tuber magnatum, is characterized by a pale smooth exterior and cream or ochre interior.  White truffles are found in the Piedmont region of northern Italy and the Motovan Forest of the Istrian Peninsula in Croatia.  Their spore-bearing material is marbled by white membranes in a random wandering form rather than any regular pattern.” [4]  An Italian composer refers to White Alba truffles as “the Mozart of mushrooms.”[5]

We Feast First With Our Eyes”

Shakespeare’s Sonnet No. 47 spawned the maxim, we feast first with our eyes.  Yet, applying that adage to mushrooms buried in dirt is problematic.  One commentator aptly states:

There is no point in trying to describe the shape of a truffle; they are the ultimate in shapelessness.  Blobs, sometimes more or less spherical but quite often multi-lobed, the outer surface of the Périgord Black Truffle is dark brown to black, covered in small crazed polygonal sections with shallow rivers between them—not unlike limestone pavement, but less regular in size and not aligned in any systematic way.[6]

Another scientific paper puts it more bluntly: “truffles are rounded, ugly and potato-shaped mushrooms with a subterranean habit.”[7]

Continue Reading The Intellectual Property Allure of Truffle Mushrooms

No, this post is not about the Thanksgiving antics of eccentric relatives.  Rather, it describes patented varieties of almonds, walnuts and pecans they may crack open with vintage nutcrackers—making a gleeful mess before dinner is served.

Tree nuts still resist the specific varietal trademark branding now associated with former fruit commodities, such as the Pink Lady® or forthcoming Cosmic Crisp™ apples.  Patent rights in undifferentiated fruit or vegetable produce usually focus on solving grower or industry facing concerns, instead of directly appealing to consumer taste preferences.

This post spotlights tree nut grower issues—as revealed by recently issued U.S. plant patents—and offers some tasty uses for this trio of very healthy, but seemingly under-utilized foodstuffs.[1]

Almond Trees Named ‘Kester’ and ‘Alm-21’

The most recent almond plant patent to emanate out of the UC Davis plant breeding powerhouse is for an almond variety named ‘Kester.’  The appellation is a tribute to the late Dr. Dale Kester, a highly regarded professor known for his work on the genetics and physiology of almonds.

Perusal of the ‘Kester’ plant patent specification discloses the “need for the development of new varieties capable of acting as a pollinizer for the California variety ‘Nonpariel’ (non-patented in the United States.)”  The ‘Nonpariel’ almond variety is California’s leading almond and accounts for almost 40% of total almond planted acreage.  Your reigning  flavor profile of an almond is probably a result of consuming ‘Nonpariel’ almonds.

The basic almond grower’s issue is this: the ‘Nonpariel’ almond variety—like most commercial almond varieties—is “self-sterile and requires pollen from cross-compatible varieties for successful seed sets.”  The much planted ‘Carmel’ almond variety in California formerly served this complementary pollinizing function, but has succumbed over time to a genetic disorder—non-infectious bud failure.  The ‘Kester’ almond fills in the breach as a pollinizer variety with a “good overlap with the later ‘Nonpariel’ variety bloom.”

Given the widespread publicity regarding a dramatic fall-off in bee colony populations, one can readily understand why another relatively recent almond plant patent is taking the California almond growers market by storm.  It is for an interspecific almond tree named ‘Alm-21’ invented by the Zaiger family (of Zaiger’s Inc. Genetics).  It is trademarked as the Independence® almond.

The ‘Alm-21’ patent specification underscores the Independence® almond’s increasing market significance for almond growers:

This new and distinct interspecific almond tree ([AlmondxPeachxAlmond)], is of large size, vigorous upright growth and a productive and regular bearer of soft shell nuts with kernels having excellent flavor similar to ‘Nonpariel’ Almond (non-patented).  *  *  *

The primary difference between the new variety and ‘Nonpariel’ . . . is the new variety is self fertile and ‘Nonpariel’ . . . is self sterile and needs a pollinator tree planted near to fertilize the flowers to produce almonds.  (Emphasis added.)

The plight of declining bee populations is causing almond growers to shift their plantings to the ‘Alm-21’/Independence® almond variety.  “In 2016, one quarter of all new almond acres were planted to the self-fertile Independence[®] variety” with many of these new almond trees being planted in the southern portions of the San Joaquin Valley.[2]

Want to diversify your family’s consumption of almonds?   Consider making your own almond milk from scratch.[3]  It is slowly, but deliciously supplanting cow’s milk in my diet.

Continue Reading A Thanksgiving of Patentable Nuts and Vintage Nutcrackers

Autumn spells and smells of apples.  Nowadays, newly patented apple varieties promise to dazzle our taste buds anew as fall harvests come in from our nation’s orchards.

It was not always so.  As a reminder, I recently bit into a nice-looking Red Delicious apple taken from a bowl of fresh fruit in our law firm reception area.  A mealy, sickly-sweet mash with leathery skin fragments stayed unchewed in my mouth—until I could race to the nearest bathroom, spit it out, and flush it down.

Inducing gag reactions is hardly a way to build markets for edible products.  Yet, a yawning taste chasm emerged in the mid 20th century as apple growers and grocery store chains foisted an increasingly indigestible Red Delicious apple on American consumers.  Put more colorfully, it was rammed down our throats, per Tom Burford, author of Apples of North America (2013).[1]

This post charts how a handful of plant patents issued in early 1990s revived the pure apple eating experience—rescuing the American palate from the tasteless diktats of Red Delicious purveyors.

The Rise and Fall of the Red Delicious Apple

Red delicious apples did not begin their varietal life in the pits.  In fact, it originated in the 1880s as “a round, blushed fruit of surpassing sweetness” named the Hawkeye; and won a taste competition organized by Stark Brothers Nurseries.[2]  “‘My, that’s delicious,’ the company’s president reportedly said after his first bite.”[3]

Growers, distributors and big-box grocery stores loved the Red Delicious apple because it looks so beautiful.  By the 1940s, it had become America’s most popular apple.  Its thick skin hid bruising and extended shelf life.  Breeding smaller trees and the advent of controlled atmospheric storage in the 1960s ensured its continued marketplace domination.

Apart from its keeping qualities, the Red Delicious was a variety Washington growers loved because they could raise it better than orchardists in other states.  The abundant sunshine and cool nights of the Yakima and Wenatchee valleys produced a fruit that was far redder and elongated and more distinctively lobed than Jesse Hiatt’s Hawkeye, which was rounder and yellow-green with only a modest amount of red blushing and striping.[4]

But as the Red Delicious “genes for beauty were favored over those for taste, the skins grew tough and bitter around mushy, sugar-soaked flesh.”  It became the “largest compost maker in the country” as customers bought them—only to throw them away in the garbage.[5]

Continue Reading From Honeycrisp to SweeTango: How Apple Plant Patents Liberated the American Palate

 

The most important plant patent trial of the early 21st century just took place in northern California.  California Berry Cultivars v. The Regents of the University of California sorts out “stakeholder” rights associated with the University system’s vaunted strawberry breeding program.

Two esteemed UC Davis professors left their academic positions and formed California Berry Cultivars (CBC) in order to commercialize their longstanding research accomplishments.  They had spent their careers at the University’s land grant college propagating and discovering new and improved varieties of strawberries.  In a real sense, these professors were the University’s strawberry breeding program.

The jury verdict is in.  Cribbing from an old Rolling Stones song, it left the professors’ reputations in tatters; and their private business interests, shattered.

In the fog of trial, one thing proved certain: a discovery misconduct jury instruction must have had a devastating impact on juror psyches from a neuropsychological standpoint.  In simple terms, this post explains why.  Continue Reading A Toxic Pairing: Discovery Misconduct and Juror Neuropsychology in a Plant Patent Trial

Orange blogOranges possess a special cachet in the American dream.  Growing up in the baby-boomer era meant that you heard—“breakfast without orange juice is like a day without sunshine”—thousands of times while watching rerun episodes of Leave it to Beaver and The Flintstones.

As my breakfast chore, I would dutifully mix three cans of tap water with one can of “fresh” frozen concentrated orange juice.  Voilà, we had our morning OJ, just like Anita Bryant’s cheery TV family.  Little did I know that the 3-to-1 formula was patented—to quench a mass-produced taste for sweet orange flavor.

As a youngster, I was also oblivious to the barrage of cognitive priming—in the form of TV ads, radio jingles, point-of-purchase placards, etc.—that would stimulate my desire to eat oranges and drink their juice to this day.  Memory traces of orange flavor are encoded in my brain.

How does the flavor of an orange leave its memories lodged somewhere in the hippocampus[1] region of the brain for later retrieval?  Behind the scenes, intellectual property rights have long shaped—and marketers have long exploited—our innate, neuropsychological demand for foodstuffs. Continue Reading How Intellectual Property Rights Shape Neuropsychological Demand for Orange Flavors