Patents and Food Technology

Defying a family trend around our dining table, I refused to call oleomargarine by its shorthand substitute, butter, in my early teens. I abhorred its fake butter taste on toast or corn-on-the-cob. Chastised as a finicky eater, I became a butter purity activist in my tiny domain of one.

Food names matter, neuro-psychologically. As

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.


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Pecans 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.’” Closer scrutiny of my favorite bourbon pecan pie recipe offers some unusual insights into the importance of plant patents, what copyright originality means as applied to classic recipes, and into chef brands tarnished by the #MeToo social movement.  This post cracks open these peculiarly American socio-legal issues.
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White 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 (in 2011).
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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.


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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]


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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.
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blog tomato 1Diana Kennedy, an intrepid chronicler of Mexican cuisine, describes cuatomates as “very small cherry tomatoes with an intense flavor and enormous amount of tiny seeds.”  A potently flavored, tiny green tomatillo variety “grows wild in [Mexican] cornfields.”[1]

Wild, obscure tomatoes—ones you’ve never seen nor tasted—represent the tomato’s intellectual property asset future, in the form

zucchini blogWith Halloween over and Thanksgiving looming, recipes for butternut squash soup abound while caved-in pumpkin faces rot away in back alleys.  For all their exotic shapes and colors, winter squashes remain tethered to autumnal demand.

Zucchinis are another story, escaping summertime seasonality.  Obscure even thirty years ago in American households, this squash and its variants are now year-round staple items in fresh produce aisles.

How a fruit masquerading as a vegetable broke free of distinct seasonality is a tale of international migration, generations of cultivation and varietal manipulation, and tasty recipes.

Squash patent applications offer a glimpse into the ongoing quest of agribusinesses to create intangible intellectual property assets—varietal patents and memorable trademarks—out of fresh fruit and vegetable produce.  This post analyzes an illustrative squash patent and the typical patenting issues encountered during the USPTO examination process.

Since food talk makes one hungry, we close with a zucchini recipe from perhaps the most inspiring cookbook of the 20th century, Simple French Food (1974) by Richard Olney.
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blog picWhen a food synthesizer first appeared on Star Trek: The Original Series, I looked upon it with awe and wonder. Its workings were never explained; but entire meals would emerge from it magically. Swanson’s frozen TV dinners were its only analogue in my childhood experience—aluminum trays compartmentalized in vaguely Bento box proportions with a daily ration of meat, a starch, some vegetables, and possibly dessert. The food synthesizer did seem to be 23rd century stuff.[1]

In a matter of 50 years, advances in the sustainable food arts are making food duplication a 21st century reality. Deconstruction of foodstuffs is now happening at the particle level in research laboratories around the world. Food replication—through 3D printing devices and like technology—promises to create even more vexing social and legal issues of food identity and authenticity.

The holy grail of this quest is a veggie burger—one with an appealing look, taste and mouth feel that will attract and retain both vegetarian and omnivore consumers. Contorting vegetable matter into tasting, sizzling and bleeding like red meat, however, poses innumerable challenges, with concomitant patenting opportunities.

This article briefly traces the patenting history of this quest and outlines where it is currently headed. Food replication is part of our cultural DNA; the journey itself is exciting.


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