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

 

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 The Genetics of Date Palm Patenting