Sunday, January 2, 2011
A Recipe for Intellectual Property
After having a string of bacchanalian festivities, a far cry from my monastic law school existence, I am having a hard time weaning myself away from all the glorious food and drink consumed over the holidays. Indeed it would be a shame if some enterprising attorney give the idea to an equally enterprising chef the idea that the latter’s creation would be subject to intellectual property. And as with all proprietary systems, the IP lang-grabbing begins as in the case of a food writer seeing this fine print attached to his food item:
“Confidential property and copyright of the Chef. Patent Pending. No further use or disclosure is permitted without prior approval of the chef”.
The difficulty in copyrighting food is that it belongs to that same category as ideas (non-copyrightable) that serve as building blocks to other, independent ideas. Take custard, a mixture of egg yolks and sugar: add condensed milk, steam, and you have leche flan. On the other hand, broil it, sprinkle the top with sugar, use a blowtorch, then you have crème brulee.
In the realm of patents, the standards are high: new, there is an inventive step, industrial application. Cooking methods are generally universal and are not as progressive. There is really only one way to sauté an onion, whether you use a stainless steel or non-stick pan. I would dread the day when the IPO would reject Yaya Judith’s application on her version of adobo and accept someone else’s. Obviously, everyone else will have their own take and taste on what the best adobo is, whether they use real vinegar or pineapple juice.
It is said that patentability issues only arise in molecular food technology not in traditional food making (which everyone can do and put their own “take on it”). So unless you’re Dr. Dyhaneshwar Chawan, a scientist who received a patent approval for a technology that processes cereal and grain-based products at a slower rate, hence cutting the carbohydrate consumption at a slower rate, wchich in turn, decreases sugar intake. This technology truly meets the industrial step standard, especially for diabetics. Your batidor for making Tsokolate eh doesn’t.
Most IP issues on the food industry are confined to trademarks, where the issue of the product’s source is paramount and any “passing-off as another’s” by using confusingly similar marks is infringement. In this sense, intellectual property is important for food, if you have a name, brand, or certain quality standards you want to uphold. Obviously, Royce, the chocolatier, will have a problem when someone else, say “Boyce”, manufactures a similar chocolate covered potato chip product. Hence, the Real Big Mac won against the local LC Big Mak.
The big question in IP and food will face is enforcement. Do you seize the infringer’s fridge, equipment or both? By the time you would have won your case in court, tastes in food will have already changed.
The food industry seems to be one of the faster-paced ones and even if you do get to copyright your menu (which I believe you won’t to begin with as a menu is just a list of ideas), a static menu may not be suitable for some restaurants since people always want something new. Unless you’re Jollibee and people expect you to have the same Filipino-style spaghetti all the time.
The problem in subjecting food to IP is, like other art forms, food-making thrives on innovation. Besides, everything nowadays is a product of inspiration. This low IP threshold gives a lot room for creativity, and allows me to deconstruct a Beef Wellington by using a cheaper cut of meat instead of tenderloin, wrapped in pre-made puff pastry – who cares if it looks like a Jamaican patty.