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

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

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

blog photoPoliticians often referred to a 90% consumer preference for food labels signaling the existence of genetically modified ingredients—or GMOs as they are known—during this year’s congressional hearings regarding the now enacted “National Bioengineered Food Disclosure Standard.”

This consumer sentiment appeared irrational to some legislative representatives, believing it defied “hard science” showing that GMO foods are “safe” to eat.  Others commented on how consumer reactions to GMO foods were highly-charged and fraught with “emotions.”

Unfortunately, the rushed legislative GMO labeling debate only skimmed the surface of consumer psychology as it relates to an expressed desire for GMO food labeling.

Discomfort with new foodstuffs resides in our age-old “omnivore’s dilemma,” where what you put in your mouth and swallow can possibly injure or leave you and your family on your death beds in Darwinian fashion.  You are what you eat after all.[1]

Innate emotions—such as disgust, fear, distress, anger and rage—arise from and can be amplified by moral notions of food sanctity and its opposite, food contamination and degradation.  As a classic 1970s Chiffon margarine commercial once proclaimed to crackling lightning and thunder: “It’s not nice to fool Mother Nature!”

This post examines GMO food labeling from the developing perspective of “moral foundations” psychology, a topic overlooked in recent hearings.  In doing so, it exposes the fallacy of the “rationalist’s delusion,”—an outmoded, but convenient line of argument that denigrates innate consumer distrust of GMO foodstuffs. Continue Reading GMO Food Labels, Our Emotions and the “Rationalist’s Delusion”

 

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

Scent marketing is as old as a realtor baking cookies in a house up for sale and as new as Oscar Mayer’s “bacon” alarm clock.  Harnessing the primal power of smell represents a final frontier of subliminal advertising.

Appealing to our sense of smell excites marketers precisely because smells trigger an immediate emotional response by a consumer—rather than a thoughtful one.  “With all other senses, you think before you respond, but with scent, your brain responds before you think,” per Pam Scholder Ellen, a Georgia State University marketing professor.

The phrase scent marketing is defined as using scents “to set a mood, promote products or position a brand.”[1]  While scents most often are primary product attributes (e.g., perfumes and deodorizers) or secondary product attributes (e.g., the smell of Ivory soap or Play-Doh), the use of ambient scent marketing is growing fast.  Airlines, hotels, retail stores, and casinos are increasingly injecting scents—sensory signatures—into the environment’s atmospherics, believing this will enhance the customers’ mood, translating into more favorable evaluations and higher sales.[2]

Because scents invade our space simply as a function of our breathing, consumers cannot easily escape ambient scent marketing. We can more readily control or avoid looking at or hearing marketing messages.  In this regard, scent marketing undercuts a consumer’s “perceptual” defenses.  In further contrast to scent marketing, sights and sounds are processed by more analytical parts of our brains; whereas olfaction is “our phylogenetically oldest and most primitive sense.”[3]

A consumer’s inability to avoid or discern ambient scent marketing or process it intellectually raises a novel legal issue: when does foisting ambient scents on consumers become a deceptive trade practice?  Continue Reading Not-So-Sweet Smell of Success: When Does Ambient Scent Marketing Become a Deceptive Trade Practice?