Patents 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 The Genetics of Date Palm Patenting

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 Patenting the Avocado: A California Story with a Classic Recipe

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 Novel Potato Chips: The Patentable Art of Processing Potatoes

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

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 Transgenic Salmon: A Primer on FDA Food Safety Regulations

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 Assessing the Validity of Food Processing Patents, Post-Alice

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

Ripe strawberries define lusciousness.  Fragile, with fleeting taste, these heart-shaped berries inspired Shakespeare’s pen: “The strawberry grows underneath the nettle; and wholesome berries thrive and ripen best; neighbour’d by fruit of baser quality.”[1]  Regarded as an aphrodisiac in provincial France, newlyweds were served strawberry soup.

Bringing the perfect strawberry to market is the driving force behind an entire industry of growers and distributors.  Consumer surveys show that “sweetness” and “complex flavor” are the favorable attributes of an “ideal” strawberry experience.[2]  In the words of research scientists, “a ripe strawberry is metabolically poised to elicit the greatest sensory and hedonic responses from consumers.”[3]

With a product so flavorful and evocative, it is small wonder that strawberries continue to be an active source of patentable innovations.  This article examines some recent U.S. patents issued for strawberry varieties and their cultivation methods.

The Columbian Exchange

Strawberries originated in the Americas.  Native Americans crushed strawberries into cornmeal and created a precursor to strawberry shortcakes.  Through the Columbian Exchange, strawberries arrived on European shores.  They soon became an emblematic feature of the aristocratic dining table.  Jean de Quintinye, a gardener for Louis XIV, developed the first named variety of a musk strawberry known as the Capron in 1672.  That strawberry variety is still available today.

New Strawberry Variety Plant Patents

One of the leading owners of U.S. strawberry variety plant patents is Driscoll Strawberry Associates, Inc., located in Watsonville, California.  Indeed, Driscoll’s founders patented the “Sweet Briar” strawberry—later known as the “Banner” strawberry—in the early 20th century.  Driscoll’s continues to patent new and distinct varieties of strawberries.  USPTO records show that the company has patented at least 86 different varieties of strawberry plants over time. The company’s website states that it studies “thousands of potential varieties” and that it takes 5-7 years to develop each new patented variety.

The most recent Driscoll’s strawberry plant patent issued on December 17, 2013, for a “Strawberry Plant Named ‘DrisStrawThirty'” (U.S. Plant Patent No. 24,096).  This new strawberry variety was discovered in Avitorejo, Spain in February 2007 and underwent testing for five years.  It is distinguishable from other strawberry varieties due to its high yield, dark red fruit color and large fruit with medium sweetness.

A second strawberry plant patent application filed by Driscoll’s on the same day as the ’096 patent did not fare as well.  The USPTO rejected the company’s patent application for a “Strawberry Plant Named ‘DrisStrawTwentyNine” because its specification presented “less than a full, clear, and complete botanical description of the plant and the characteristics which define same per se and which distinguish the plant from related known cultivars and antecedents.”  This strawberry plant had also been discovered in February 2007 in Avitorejo, Spain.  Perhaps because of the USPTO’s issuance of the “DrisStrawThirty” patent, the company abandoned the companion strawberry patent application for “DrisStrawTwentyNine.”

Closer to home, the Washington State University Research Foundation obtained a patent for a “Strawberry Plant Named Puget Crimson” (U.S. Plant Patent No. 22,781) in June 2012.  This strawberry is the result of a hand pollinated cross between “Schwartze” and “Valley Red” strawberry varieties.  The Puget Crimson “is distinguished by fruit that is large, firm and easily capped, with excellent flavor.”  The fruit ripens in late June.

Interestingly enough, a group of Seattle chefs taste-tested the strawberry varieties being developed by the Washington State University Research Foundation.  The one that came out on top—the Puget Crimson—was then known only as “No. 2833.”  Be sure to sample the Puget Crimson strawberry when it appears in your local grocery store or farmers’ market this summer![4]

Strawberry Plasticulture

While strawberries are visually and aromatically enticing, the strawberry fields on which they are grown are not.  As one author put it, strawberries “begin and end in plastic.”[5]  Commercial production of strawberries involves heavy use of plastic film mulches and drip irrigation/fertilization systems. This commercial production method is known in the industry as strawberry plasticulture.

Strawberries are also notoriously hard to harvest.  To migrant workers, they are known as la fruta del diablo, “the fruit of the devil.”  “Picking strawberries is some of the lowest paid, most difficult, and therefore least desirable farm work in California.”[6]  To the extent processing advancements can reduce the backbreaking toil of harvesting strawberries, patents are a natural means to protect such grower innovations.

Thus, the difficulties experienced in growing and harvesting strawberries can and do provide a fervent ground for patenting activities.  A recent example related to strawberry plasticulture is a “Process for Enhancing Plant Growth,” U.S. Patent No. 8,505,237, issued on August 13, 2013.  The ’237 patented invention involves incorporating one or more yellow pigments or dyes into plastic mulch film or greenhouse coverings so that specific ratios of light are transmitted, emitted or reflected.  Research underlying this invention shows that plants “see” colors very differently than humans do.  Spectral modifications of light can profoundly impact plant growth.  This patent is part of a large wave of patents directed to plasticulture technology.  See, e.g., “Stabilized Polyolefins Having Increased Agrochemical and UV Resistance and Methods of Use” (patent application published on October 10, 2013).

No End to Potential Strawberry Patents

Through cross-breeding of strawberry varieties and in light of heavy commercial reliance on plasticulture systems and methods for strawberry cultivation, the possibilities for strawberry-related patenting activities appear to be endless.  Truly, strawberry patents, forever.[7]

[1] William ShakespeareHenry V (c. 1599), Act I, scene 1, line 60.

[2] M. Schwieteman, et al., “Strawberry Flavor: Diverse Chemical Compositions, a Seasonal Influence, and Effects on Sensory Perception,” PLoS ONE 9(2): e88446.  DOI: 10.1371/journal.pone.0088446 (published February 11, 2014).

[3] Id.


[5] E. Schlosser, “In the Strawberry Fields,” from the Atlantic Monthly online (accessed on 3/4/14).  The article focuses on the hardships encountered by migrant workers harvesting strawberries in California.

[6] Id.

[7] Most readers will immediately recognize the weak pun related to the famous Beatles psychedelic pop/rock song, “Strawberry Fields Forever.”  The Beatles’ song hit the airwaves in February 1967 as a double A-side single with “Penny Lane.”  “Strawberry Fields” refers to the name of a Salvation Army children’s home near John Lennon’s boyhood home in Liverpool, England.  John’s mother forbade him from playing with his friends in the wooded lot behind the Salvation Army’s children’s home.  They would play there anyway.  Lennon would tell his mum that they couldn’t hang you for being there, hence, there was “nothing to get hung about.”  See



The term pioneer patent [1] is often misapplied with hyperbole and exaggeration.  When it comes to the shrimp peeling machine invented by Fernand and James Lapeyre, however, that blockbuster label is spot-on. [2]  Their automated way of processing shrimp rocked the seafood processing industry in the 1950s by driving manual labor costs virtually out of existence.  In today’s vernacular, it was a real game-changer.

Patents (and intellectual property rights in general) do not necessarily confer natural monopoly rights as economists would understand the concept.  This is because excluding “others from using a particular name, word, image, product or process does not imply any substantial market power when substitutes are plentiful.” [3] When a groundbreaking patent is issued, however, the governmental grant can take on monopolistic tendencies—paradoxically even if unused and seemingly unexploited.

A monopoly is commonly defined as the “exclusive control by one group of the means of producing or selling a commodity or service.”[4]  A pioneer patent—and even more importantly nowadays, a conglomeration of related patents owned by a single entity—can sometimes create new product and service markets and legal barriers to entry capable of commanding what economists call “monopoly rents.”  As rational actors, it is also an economics truism that “monopolists invariably act like monopolists” as they strive to maximize profits.

Even though the United States Patent and Trademark Office is empowered to issue broad exclusionary rights to worthy inventors, another broad federal statute—the Sherman Act—exists to prevent abuses to the competitive process.  Section Two of the Sherman Act provides that every “person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony ….”  15 U.S.C. § 2.  The right to exclude others from co-opting inventions (in the absence of a license from the patent owner) is accurately described as a “time-limited government” conveyance of “potential monopoly power, which can be put to ‘good’ or ‘bad’ uses from a societal standpoint.”[5]

Where is the line drawn between lawfully exploiting patent rights and running afoul of antitrust law prohibitions regarding monopolization?  The answer is murky and perhaps unsatisfying to those seeking bright line licensing and competition rules.  The boundary line often only becomes clear in retrospect.  The demarcation between a patent owner lawfully exploiting exclusionary rights vs. an illegal monopolist abusing those same rights is highly fact-dependent.

The Lapeyre family’s very creative leasing scheme for its patented shrimp peeling machines offers a vital case in point.  With the invention of a single processing machine, the company irrevocably altered the cost dynamics of an entire shrimp processing industry.  Licensing disputes—collectively known as the “shrimp peeler” cases[6]—arose soon after the commercialization of the Lapeyre’s invention and were finally resolved in the mid-1960s.  These case holdings help demonstrate how the Lapeyre’s crossed the line between “good” and “bad” exercises of a patent’s potential market power.

The shrimp peeler cases predate wholesale policy changes in antitrust analysis that emerged out of the “Chicago School” of economic theory—especially the demand for the more rigorous determinations of market power championed by Judge Richard Posner.  However, despite paradigmatic changes in antitrust jurisprudence, the outcome of the shrimp peeler cases would likely be no different today.  Continue Reading Antitrust Monopolization Considerations in Licensing Cutting-Edge Food Technology Patents

Plant patents occupy a seldom studied corner of potential patent protection.  But plant patenting is taking on new importance as growers and producers of fruits and vegetables—once branded only as commodities—take advantage of the premium price points more specific patent and trademark rights can yield.  Commodities appeal to the undifferentiated masses; but marketing targeted to individual taste preferences is now the order of the day.

What are Plant Patents?

Established through the Plant Patent Act of 1930 (the PPA), this intellectual property right is granted to any person who “invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings . . . .”  35 U.S.C. § 161.[1]

The Act’s legislative history describes this provision in layperson terms: “[T]he bill provides that any person who invents or discovers a new and distinct variety of plant shall be given by patent an exclusive right to propagate that plant by asexual reproduction; that is by grafting, budding, cuttings, layering, division, and the like, but not by seeds.”

The PPA does not provide patent protection for varieties of plants found growing in an uncultivated or wild state.  So, sorry to all you plant foragers!  Tuber propagated plants (e.g., potatoes) are also excluded from plant patent protection.

Before the PPA was enacted in 1930, patent laws seemed to favor industrialists over farmers.  This rankled the most famous American plant breeder of the time, Luther Burbank.  He bemoaned the fact that:

I have been for years in correspondence with leading breeders, nurserymen, and Federal officials and I despair of anything being done at present to secure to the plant breeder any adequate returns for his enormous outlays of energy and money.  A man can patent a mousetrap or copyright a nasty song, but if he gives to the world a new fruit that will add millions to the value of earth’s annual harvests, he will be fortunate if he is rewarded by so much as having his name connected with the result.[2]

In the 21st century, the goals of the PPA may be coming closer to fulfilling Luther Burbank’s plant breeder aspirations.  Take cherries, for example, which are now coming into season in droves.  While Bing cherries—Royal Annes in an earlier era of canned cherries—still dominate the U.S. market for fresh cherries, it is becoming more highly differentiated with new market entries.[3]  Aficionados can distinguish among and may prefer a Rainer, a Chelan, a Lapin or a Summit cherry, instead of that good ol’ Bing cherry. Continue Reading The Growing Allure of Plant Patenting for Brand Differentiation