A Moron In A Hurry

October 18, 2006

Steal This Recipe

Filed under: copyright, patents — nick @ 3:02 pm

Sometimes you just have to stop and wonder what is going on.  Legal Fixation comments on an article in Food & Wine on intellectual property in the kitchen.  Efforts include patenting certain concoctions, as well as copyrighting the expression of recipes themselves.  Of course, outright plagiarism of published recipes is a no-no, and some food processes (like engineering absinthe or molecular gatronomy) may seem apt for some sort of IP protection at first glance, but it still remains to be seen whether most cooking is truly inventive.  Chefs may disagree, but their self-interest in protecting their ritzy concoctions should be checked by some sanity.  Surprisingly, the fashion industry, which mirrors cooking in that they’re both evolving arts, has been making strides in protecting their wares, with legislation even being considered in Congress, but I’ll send you to Counterfeit Chic for more on that.  Still, we should consider the cultural implications of such food rights for fear that they go too far.  Rather than buying my food, it’s easy to imagine a time when a restaurant licenses me the right to eat their food, much like the entertainment industry is seeking to characterize “purchases” of songs and movies as merely purchasing limited licenses to use.  Upcoming chefs often work in apprenticeship type positions, meaning at some point they will be confronted with NDAs and be forced to sign away all rights to recipes they come up with to their restaurants (who will of course be in dominant position of power given the stiff competition in the industry).  Worst of all, if food patents become big business, the difficulty in proving prior art in culinary seems overwhelming and the likelihood of patent trolls seems inevitable.  Chefs had better be careful what they wish for.


July 22, 2006

Name that Smell

Filed under: copyright, patents, trademark — nick @ 11:18 am

There has been lots of discussion on-line recently as to the IP status of scents.  Here is a quick round-up of the discussion and a technological development that could change everything.

It seems that the stink first wafted over the Atlantic due to recent decisions in France and the Netherlands that have recognized copyrights in perfumes. Counterfeit Chic was the first to report on this and the NYT followed (or here) up a few weeks later.

Info/Law thinks that a smell, more specifically a perfume, should be protected by patent law rather than copyright, but also notes the way that the French are much more protective of the moral rights of artists.

There’s also the question of trademarking a smell. As The Trademark Blog has pointed out, a Lituanian pizza parlor is arguing that the smell of their pizza has secondary meaning that affords it trademark protection:

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the [pizza chain]. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.”

If the request is granted, it does not mean that other pizzerias would have to stop making the oven-baked dish, but only [the chain] would be able to make the claim that its food smells like freshly baked pizza.

Thus highlighting the potential peril of such an expansion of intellectual property rights.

Since trademark is all about brand protection, there are always people looking to protect nontraditional marks such as smells, tastes, feels, and etc. Here’s also a bit of history behind protecting nontraditional marks.

Generally speaking, smells have usually been denied protection because there is no good way to define one. For instance, registering a trademark requires a graphical representation of the mark, which is impossible for a smell, as the Court of First Instance of the EC ruled in Eden v. OHIM in denying trademark protection for the smell of strawberries.

A patent requires both that the subject being patented be new and non-obvious.  Using the smell of strawberries as an example, the scent is clearly neither new nor non-obvious; everyone knows and can recognize the smell of strawberries.  However, gene patents have become fairly commonplace since a case, Diamond v. Chakrabarty, 447 US 303(1980), first loosened the accepted ban on patenting living organisms.  There, SCOTUS said a man-made organism was patentable.  Gene and other bio patent seekers attempt to exploit this kind of loophole, with moderate success, through the drafting of narrow claims over extracted or purified biological elements.  Thus, while a regularly occurring gene as it occurs in nature might not be patentable, using mechanical processes to isolate it increases the odds that the lab version can be patentable.  Though, gene patents are hotly contested as being incompatible with the plain meaning of patent law, especially as more obvious biological phenomena are being patented.

So what do gene patents have to do with scents?  In 2004, Dr. Richard Axel and Linda Buck were awarded the Nobel Prize for scientifically describing how scents are processed by the nose.  It should be no surprise then that, based on this discovery, researchers are working on a machine that is able to record a smell and play it back.  If successful, not only does this mean that the smell of my mother’s one of a kind apple pie – using a mix of McIntosh and McCoun apples with cinnamon, nutmeg, and a dash of cardamom – could be recorded and coded (ie. fixed in tangible form), it could also be duplicated for all sorts of uses.

And once there’s money to be made the IP lawyers and suits will follow.  If you fix it, they will come.  Such a smell machine would break down many of the practical barriers in denying scents IP protection.  Copyright?  Here’s the olfactory code of my smell, much like a computer program.  Trademark?  With the ability to reproduce at will and package ingeniously, building secondary meaning is no longer so difficult or implausible.  Patent?  Like with gene patents, if I modify the smell of strawberries and can isolate it from its natural source, what’s stopping the USPTO from giving me a patent?  All of a sudden, what seems practical – scents are too ill-defined for IP protection – starts to smell a bit fishy.

June 4, 2006

Net2Phone Sues Skype Over Patent

Filed under: patents, voip — nick @ 5:57 pm

Net2Phone has filed suit against Skype for patent infringement. The patent, number 6,108,704, purports to cover a point-to-point internet protocol that allows one computer to tell whether another is online and then allows them to connect for the transmission of data. Sounds pretty vague, eh? Only a few weeks ago the Supreme Court sided with eBay, which bought Skype in 2005, over MercExchange's infamous "Buy It Now" patent, ruling that injunctions should not be issued automatically whenever a patent is found to be valid and infringed upon. It follows that the court hearing this case will then consider whether Net2Phone has suffered "irreparable damage" and whether money damages are an adequate remedy before issuing the injunction that Net2Phone seeks against Skype to halt its business (or more likely to exact a hefty licensing fee). However, Net2Phone may have a leg up on MercExchange because it appears to that it may actually be using its patent, elevating it above the dubious label of patent troll and making it slightly more likely an injunction could be handed down.

You can read Net2Phone's complaint against Skype here.

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