I need to acknowledge two dear friends today.  Tor Constantino (www.thedailyretort.com) and Stuart Nager (www.openingofdoors.wordpress.com) who are responsible for today’s post.  Actually, they advised me that another post that I had scheduled for today, the Rosh Chodesh of Tevet, was not appropriate for my readers.  I thank them for their honesty, advice, and friendship.

Patents.  I’ve had a few.  I’ve also killed a few.  I’ve also refused to prosecute a few that, maybe, I should have- or not.

Yes, patents provide you with protection against others using/making your product for 20 years.  So, that could be valuable protection.  Or, it could let a big company try to tie you up in court, spending money you don’t have to defend the validity of your patent.

Look at the current Apple/Samsung spat.  Those are two big companies.  Spending millions, suing one another.  And, the problem is that the disputes can get fairly arcane- way beyond the capability of the general population to understand.  (Do you really believe that making a smart phone with rounded corners is a breakthrough enough to be granted a patent?)

And, there are Utility and Design patents.  A design patent lets you get protection for your choice of design.  Utility patents are for things- how they are made or that they are made: process or method patents (how they are made), composition of matter (of what they are made), machine (a tool to make something),and articles of manufacture (tangible items).

Food companies rarely patent their items.  Because the protection only last 20 years (it used to be shorter)- and one must share the exact method of manufacture with the world.   Which is why Hostess plans to sell its key products as an asset (in bankruptcy) as trade secrets.  Twinkies are 80 years old- far longer than any patent protection could have shielded them.  The formula for Coca Cola is another closely held secret- and that is older than a century.

Most of the medical innovations that we developed were not patented.  The process for making one of them is only known by three people- and only two of them know how to obtain the exact raw materials needed.  Obviously, that product is difficult to be copied by another- and no lawsuit can be engaged to have one divulge the secret.

But, trademarks are a different matter.  Hostess Twinkies are trademarked, Coca Cola and Coke are trademarked, Drake’s Ring Dings are trademarked.  No one can use those names without the permission of the trademark owner.

It’s why Xerox Corporation used to write (and prosecute) many firms who went around saying (please forgive me, Xerox, this is only for demonstation), they’ve “Xeroxed” the report.  And, we use tissues- not “Kleenex” to blow our noses (unless, of course, we really have a Kleenex tissue in our hands).

But, if someone wanted to reinvent a cake that resembled and tasted like a Twinkie- Hostess could only insure that the new (or old) company couldn’t use the name.  Before Nabisco bought the Hydrox brand from Sunshine, we had a choice between Oreos and Hydrox.  (Back then, only one was kosher.)  Nabisco trademarked the name Saltine for its Premium crackers (Sunshine had Kripsy and Keebler has Zesy), but the methods of manufacture and components are all remarkably similar.

The issue is that while recipes are potentially patentable, most fail to meet the novel and non-obvious conditions to obtain such legal protection.  (Ingredients off-the-shelf won’t make that grade, of course.)   And, while some software has developed protection via copyright (which prevents others from copying and selling the same item), a copyrighted recipe would only stop one from publishing it- not from making and/or selling the food produced by that recipe.

Of course, this begs the obvious question.  Why would someone make a Twinkie in the first place?

Share this: