Patents 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]
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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

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. 
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