Legal Delicacies: Patenting Our Food | Article 3

Will this new steak, invented by Dr. Mata and Chef Gresh pass all the requirements of patentability?

When you bite into a juicy piece of steak or a crisp apple, probably the very last thing on your mind is intellectual property law. Yet, the food that we eat and the seeds and processes that grow and produce our food are tightly controlled. Those who invent new foods, or find a way to remake old foods, want the legal protection they need to build a business from their creations.

Gone are the days that you could just plant an apple tree and eat the produce. If the seed you used to plant that tree was genetically modified then there?s a good chance it?s patented ? in other words you probably owe a licensing fee for using it. Honey crisp apples, for example, were patented by their creators (NB:the patent expired in 2008.) More recently, a new kind of steak cut called the ?Vegas Strip Steak? was created. While this might ?just sound like a cut of steak, the creators are arguing that the exact way the steak is cut makes it special and thus patentable.

In order for something to receive a patent from the United States Patent and Trademark Office (USPTO), the invention must meet certain elements:
1. be statutory
2. be new [novel]
3. be useful
4. be nonobvious.

Does the Vegas Strip Steak meet these requirements? While we?ll have to wait and see what the USPTO says, there are strong arguments on both sides.

The element of statutory will likely be be met because this is the easiest of the elements to meet. To be statutory the law states that ?processes, machines, articles of manufacture, and compositions of matter are patentable?. A cut of beef is a composition of matter and thus patentable. And the composition of the Vegas Strip Steak is a process of cutting the beef.

The second element of novelty requires that no public disclosures of the invention have previously been made. Novelty is likely to be met as this cut of beef is 14 ounces and comes from a part of the cow that is usually used for hamburgers. Additionally, the cut of beef is considered novel by the creators because it uses completely original knife strokes that have thus far been kept a secret.

The last two elements of usefulness and nonobviousness may prove more difficult for the owners of the Vegas Strip Steak to prove. Usefulness ?refers to the condition that the subject matter has a useful purpose and also includes operativeness?. The knife cutting technique will need to be proven useful to the specific purpose of cutting the beef to create the Vegas Strip Steak. To some it seems absurd that a license would be required each time a chef or butcher cuts beef in this way.

Moreover, even if a knife cutting technique works as intended, it may be overshadowed by the final element, nonobviousness. In order for the patent to be ?nonobvious the invention must not be exactly the same as prior products or processes?. This element needs substantial proof that no one else has thought of cutting the beef in such a way. The creators must show that their technique is so different that no one else has developed it yet.

While some legal scholars believe that this patent application is a marketing stunt, others note its legitimacy in line with how prominent food patents have become in recent years. Doubters cite the fact that patenting a piece of meat is not possible because it comes from nature and therefore this is all just PR; believers state that the creators are not trying to patent the cut of meat, but the process.

There may be a point to this PR argument. There?s been a lot of chatter about the Vegas Strip Steak in the last few weeks. Publications such as Gizmodo, the Freakonomics Blog, and the American Bar Association Journal have covered the story. If the USPTO grants the patent, the creators of the Vegas Strip Steak would be able to charge licensing fees to packing plants that sell their specialized cut. And with the publicity surrounding this beef cut there is already a buzz for the steak, potentially driving demand for licenses.

Cuts of beef are not the only food up for debate. Applications for genetically modified seeds for foods like apples and corn have also been sent to the USPTO. These foods patents have left some wondering if IP laws have gone too far. On one hand, allowing patents on food may stifle possibilities in farming and food production, but on the other, a patent on something like the Vegas Strip Steak means stimulation and motivation for people to create under protection from the law.

What are your thoughts on food patents: Good for creators and businesses? Bad for consumers and food production?

About Kira O'Connor

Kira graduated from of U.C. Berkeley with a degree Mass Communications and Media Studies and will graduate from the University of Oregon School of Law in May 2012. Kira has worked in entertainment and media since high school, and during college she worked at Universal Music Group and the Cal Berkeley television station. In law school, her focus has been on sports, entertainment, and intellectual property law. When her face isn?t buried in case law, she enjoys triathlons, adoring baby animals, and taking jumping pictures. Follow her on Twitter @kiraoconnor

Source: http://www.article-3.com/legal-delicacies-patenting-our-food-99251

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