Sincerest Form

[Fat Guy]

A unique dish served at a restaurant represents a tangible medium of expression. You can see it, touch it, smell it, eat it, photograph it. It's a unique artistic creation just like a sculpture, photograph, building, poem or song.

[cdh]

Yes, that's easy. It is impossible to copy a unique dish, otherwise it wouldn't be unique. Where does the protection kick in? How similar is too similar? How far would you have the derivative works protection extend?

[Julian Teoh]

A unique dish served at a restaurant represents a tangible medium of expression. You can see it, touch it, smell it, eat it, photograph it. It's a unique artistic creation just like a sculpture, photograph, building, poem or song.

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Steven, I am glad you raised the multisensory nature of the food as bestowing upon the dish its uniqueness as a medium of expression.

You had earlier adopted your position that the copier is not at fault because he is working off the same recipe, as the recipe is merely an idea and a list of ingredients and techniques, but in reproducing the expression of the idea.

My only issue with that argument is that it would be a very brave trier of fact who would say that a dish is so similar in terms of our sensory perception such that copyright has been breached. After all, the copier might be working off the same song sheet but may well produce a different result taste and texture wise. And if so, to what extent would any similarity be bearable before copyright is breached?

Edited April 5, 2006 by Julian Teoh (log)

[Fat Guy]

There are plenty of standards in other areas of copyright law that cover issues like these, such as "distinguishable variation" in photographs. And of course there would need to be some standards unique to the culinary arts, as the culinary arts are not the same as other arts. The overarching issue, however, is pretty simple: a completed dish is not a recipe; it's a work of art. It should have the same protection under the law as any other work of art, design, literature, music what have you.

A two-sentence post on an eG Forums topic -- a post that took one minute and little creativity to write -- is fully protected by the copyright laws, automatically, for free, no need to register anything. Yet people are quick to argue that a dish Grant Achatz spent weeks creating, at great expense in a laboratory-like environment, shouldn't be protected by any laws at all. Is cuisine so unworthy that it, perhaps alone among the arts, should have no protection? That the only remedy for an aggrieved chef, who has had his creative work stolen, should be eG Forums posts?

[Julian Teoh]

I agree that there should be some form of protection for intellectual property inherent in culinary creative efforts. However, to impose a standard would be problematic. "Distinguishable variation" to the naked eye is one aspect - the degrees of olfactory and palate sensitivity vary greatly between people, and there are established categories of "supertasters" whose palates are clearly far more sensitive than the average human.

I'm thinking along the lines of Australian copyright law (relevantly, as chef robin works in lovely Melbourne), where the categories of copyright inhering is restricted to artistic works, literary works, musical works and dramatic works, and does not purport to be inclusive and unlimited as the US statute.

The first problem one would face would be to attempt to pigeonhole a dish into the existent categories. Would you apply a "dominant purpose" test as to whether Chef Achatz's, or anyone else's food, would be a "work of art?" Even if it passed that test (and reproduction of artistic works is among the categories of prohibited conduct in the Copyright Act), again, the degree of reproduction and how you would make a solid finding on that basis is what troubles me.

Since the "wrong" occurred in Melbourne, and if Australian law applied, I cannot see, with respect, where food would fit in. It SHOULD have the same protection; morally and ethically, I think we're on all fours, but under the law as it stands, I cannot see any potential remedy.

At this point, if there any Australian copyright lawyers out there, please feel free to correct me.

[Fat Guy]

Photographic comparison should do the trick -- just look at how this topic got started. It's pretty easy to see that these dishes are as near to exact copies as the medium allows. To get hung up on the minor sensory distinctions point would be a distraction.

[butterscotch]

.  It is impossible to copy a unique dish, otherwise it wouldn't be unique. 

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there are technicians is every field who can copy just about anything, so by that reasoning nothing created is ever unique?

[Pan]

But Fat Guy, what if someone deliberately designed a dish to look like another dish but taste completely different? I don't think photographic evidence should be considered sufficient for comparison of dishes in a legal proceeding.

[Fat Guy]

Sure, the photo needs a description that needs to conform to various technical criteria, so as to distinguish between a bunny made from chocolate and one made from blood pudding, or whatever.

[joesan]

I don't quite know why but the idea of a bunch of lawyers hammering some restaurant over a copyrighted dish really disgusts me.

Locking down food and new dishes seems just wrong and contrary to the spirit of gastronomy. I'm not even sure it would be that good for business. If you look to the past those chefs who are most successful have been free with their recipes and to the betterment of mankind.

[inventolux]

I couldnt agree more. I think the entire point here should be to first lock down the ideas that have massive impact potential. The next step would be to only allow those fellow colleagues (creative chefs) unlimited (and free) use of a certain piece of IP and then charge those that have intentions of selling it to the masses. The key move here is not to disclose any information outside the kitchen until a rock solid patent has been filed so it doesnt leak to the wrong entities. If someone plans on taking a creative idea for the sole purpose of making millions, well then its time to pay up. Its an idea me and my team came up with so lets see the money. I wont just sit there and watch somebody rip off my teams ideas. That stifles creativity simply because the creator could use that capital for pushing innovation. This is where patents can be a good service to creativity. Now of course there are the bozos that screw it up for everyone and want you to start paying for crazy shit like jpeg compression and "pay here now" technology. They are in it for the money and should go to hell. The only way its going to change is if those of creative integrity rise up and play by the rules to win the game. Patents are going to infiltrate the food world. There is nothing that will stop it. You can look the other way as long as you wish. It wont make the situation any better. The lawyers will continue to get wealthier and the poor will continue to be poor. That can change, the entire business can change. But first we must change our way of thinking. We have to think BIG. They have lawyers, so im gonna have lawyers. Lawyers are like nuclear warheads, theyve got theirs, so ive got mine, but once you use them they fuck everything up. I dont mean any disrespect here to anyone, in fact, my attorney agrees with me (and he thinks thats funny). So just make a rock solid patent and you hardly have to use them at all.

I don't quite know why but the idea of a bunch of lawyers hammering some restaurant over a copyrighted dish really disgusts me.

Locking down food and new dishes seems just wrong and contrary to the spirit of gastronomy. I'm not even sure it would be that good for business. If you look to the past those chefs who are most successful have been free with their recipes and to the betterment of mankind.

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Edited April 6, 2006 by inventolux (log)

[inventolux]

Technical Difficulties

Edited April 6, 2006 by inventolux (log)

[cdh]

Amen, inventolux.

Patents are where the IP lockdown should end. They're rare, they require a significant novel invention rather than just "a two sentence post", and they are not automatic. If you can get one, then it's yours to do with as you please... Unlike copyright, the substance of a violation of a patent is certain and you can't wreck the business of lots of your peers by extorting cash for "rights clearances" from them because they are cooking something arguably derivative of your work. And there won't be executors and trustees (usually lawyers) with a fiduciary duty to wring every last cent out of the property for 70 years after you kick the bucket.

[Fat Guy]

Yes, only wealthy people and corporations with tens of thousands of dollars at their disposal for each instance of invention should be able to protect their work. Those without major resources should never be able to own their creations -- they're just volunteers.

[inventolux]

Yes, only wealthy people and corporations with tens of thousands of dollars at their disposal for each instance of invention should be able to protect their work. Those without major resources should never be able to own their creations -- they're just volunteers.

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It costs 80 bucks to file a patent plus the time it takes to create one. If its a good one, it can pay for its self in spades. One doesnt need thousands, just the willingness to learn how to adapt.

[chefzadi]

Patents, food and big corporations?

Monsanto and GMO corn seed, anyone?

[inventolux]

Patents, food and big corporations?

Monsanto and GMO corn seed, anyone?

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Once again, another example of what IS NOT going on here. If you stumble on the next great idea and watch one of those GMO corn seed big corps rake you over the coals for a couple hundred million, then youll understand. Perhaps youll feel good for allowing your idea and money sit in the pockets of anderson like executives. Its more than money. Its resources and just doing the right thing with them. Or do whatever you want with your ideas, they are YOUR ideas.

This is no difference in my opinion from say Rick Bayless creating a successful restaurant based on many successful ideas. Here forward thinking chefs are tapping into ideas that have mass market impact. Would Rick just give his restaurant over to some big corp to franchise? NO. So why would we as a collective effort of forward thinkers just hand over our ideas to some large corp.

The world is full of bystanders who just complain and watch the world get more screwed up but dont do anything about it. In that case, the greedy Enronians deserve to have your ideas and money you could pay your employees higher wages with.

Or maybe this doesnt apply to you simply because scientific applications in food isnt you main area of expertise. Well, keep doing classical preparations, there is nothing wrong with that. But at least realize my position is to imrove the working conditions of this business as a whole. Lets hear from those that work for hours on end to create these scientific works of art. Currently I am the only one here that is taking this position. Im sure other chefs in this category are thinking the same as they read and realize that they may need to begin this protection process. Nick was right, its about intellectual integrity, and soon it will be about intelletcual integrity with billions of dollars at stake. Now thats a situation egullet wont be able to fix with online debate alone. Its going to take time, discipline, understanding and a desire to make massive change.

Edited April 6, 2006 by inventolux (log)

[nick.kokonas]

It costs 80 bucks to file a patent plus the time it takes to create one. If its a good one, it can pay for its self in spades. One doesnt need thousands, just the willingness to learn how to adapt.

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That is not entirely accurate, Chef. That is for a design-patent, not a "utility" patent -- or "patent for invention". A design patent could conceivably cover food composition (I doubt it though), and would certainly cover serviceware. But for "inventions" which encompass a process, machine, method of manufacture, etc., the process is much more complex, the costs much higher, and the end utility of the patent itself far greater. It will also take several years, requires representation in front of the patent office, and will require much time of the person applying. So, for example, you could easily file a design patent for your "herbacious utensils", but would require a utility patent for the edible ink-jet process. The latter has far more value than the former.

In addition, holding a patent is of very little use if you do not have the means (read: $$) to enforce it -- a lesson many patent holders learn the hard way. Most patent attorneys will not take a case on contigency unless there are very clear violations, there is more than one violation, and the violators themselves have deep pockets. Otherwise, you pay out of pocket -- and then you pay up front, so to speak, for an uncertain outcome. I am on the board of a technology company that holds a very broad business-process patent on a widely used internet process, but the utility of that patent is almost nil to our company since we do not have the means to enforce it. Our only chance of making money off of it would be to sell the patent to an aggregator.

And that is why the idea of "patenting" food processes for restaurants has not really taken off. Getting the patent is one thing, using it effectively requires deeper pockets and an entirely different skill-set than is typically present at a restaurant.

[inventolux]

It costs 80 bucks to file a patent plus the time it takes to create one. If its a good one, it can pay for its self in spades. One doesnt need thousands, just the willingness to learn how to adapt.

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That is not entirely accurate, Chef. That is for a design-patent, not a "utility" patent -- or "patent for invention". A design patent could conceivably cover food composition (I doubt it though), and would certainly cover serviceware. But for "inventions" which encompass a process, machine, method of manufacture, etc., the process is much more complex, the costs much higher, and the end utility of the patent itself far greater. It will also take several years, requires representation in front of the patent office, and will require much time of the person applying. So, for example, you could easily file a design patent for your "herbacious utensils", but would require a utility patent for the edible ink-jet process. The latter has far more value than the former.

In addition, holding a patent is of very little use if you do not have the means (read: $$) to enforce it -- a lesson many patent holders learn the hard way. Most patent attorneys will not take a case on contigency unless there are very clear violations, there is more than one violation, and the violators themselves have deep pockets.

And that is why the idea of "patenting" food processes for restaurants has not really taken off. Getting the patent is one thing, using it effectively requires deeper pockets and an entirely different skill-set than is typically present at a restaurant.

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This is where we must understand how to properly execute a rock solid design and utility patent. If a possible infringer sees a patent that will win in court, then they will settle out of court. Its when we deal with bad patents that only cover the specific invention and not variations on it that we wind up spending millions on lawyer fees. Look at the Blackberry situation. I have spent a great deal of time trying to understanding the language of patents so I dont go broke. Initially, it was scary and very stressful. The first one is the hardest but once a system is in place the process can be streamlined and the costs can come down a lot. Through licencing, building a business, and gathering a legal team that believes in the patents that are pending, they were willing to put in their time for a later reward. It can be very hard and daunting in the initial phases. But not nearly as difficult as opening a restaurant or watching some other entity steal the IP.

I believe this is feasible for chefs to begin doing. I am not a wealthy person and I come from very humble beginnings. It just takes determination.

Perhaps one may need deeper pockets for a long court battle. There is plenty of investment capital out there if the patent is bullet proof.

One great example is airbags. One person has been patenting airbags before their implementation in cars and always settles out of court with all of the major car manufacturers every year. He doesnt just patent them for uses in cars, he has applications that run from zero gravity space shuttle missions to submarine airbags. Now maybe nobody will ever use them in those situations, but the major auto producers know they have to settle out of court or face an injuction because this guy owns all airbags from here to the edge of the galaxy. He has created many "circles" of protection around himself. The point here is to think beyond the realm of our kitchens. This way of thinking can stimulate creativity inside and outside the restaurant world. Its simply a matter of understanding how the system works and defining the many creative applications for an idea that has massive potential.

I believe that patenting has not taken off for restaurants simply because we have not thought of it. Anytime we dive into the the unknown we experience fear and frustration. That is necessary for growth and progress.

Yes, we are up against big money, but history has proven that ideas will always be the driving force behind big business.

[joesan]

Inventolux - you seem like a good guy with good intentions. I'm a good guy with good intentions but I seem to have a somewhat opposing view to you. I make a good living and I'd like you to do the same. So I'd like some education.

Here's what I am scared of. I am not in the food business. I love food and I love good restaurants. I love "Molecular Gastronomy" and other haute inventiveness. I also love a simple grilled sardine.

I've watched with horror as some predatory legal practices have moved to Europe. For example "Ambulance chasing". The result of this is that, for example, schools daren't take their pupils on educational outings for fear of crippling litigation if someone should slip. The kids miss out on the fun educational trips overseas that I enjoyed and enriched my life. You seem to have a social conscience and I wouldn't think that you would approve of that outcome either.

In other spheres aggressive patenting of, IMO, obvious processes has led to lockdown of beneficial technologies for use by the masses. I worry not that you'll get a patent for say printing food but that techniques that would enrich our culinary repertoire would be missing entirely unless chefs pay a culinary ransom. I worry that the holding of patents will result in a net loss for the culinary diaspora as a whole.

Can you allay my fears?

[Dave the Cook]

The debate on culinary plagiarism continues over here, with new examples and a bigger playground. It's not just about down-under duplicates:

. . . . .

Over the past couple of weeks, we’ve seen significant discussion of culinary plagiarism and intellectual property issues. Most of those discussions have been at the expense of a lone Australian chef, whose copying was so thorough it made for a useful starting point for discussion: there were no shades of gray.

It’s time to move on from Australia. Culinary plagiarism is not endemic to Australia. It is a global problem.

In the time since we exposed the aforementioned incidents, several other examples of brazen copying have come to our attention. One in particular is . . .

Join the discussion.

[jwanger]

In other spheres aggressive patenting of, IMO, obvious processes has led to lockdown of beneficial technologies for use by the masses. I worry not that you'll get a patent for say printing food but that techniques that would enrich our culinary repertoire would be missing entirely unless chefs pay a culinary ransom. I worry that the holding of patents will result in a net loss for the culinary diaspora as a whole.

Can you allay my fears?

←

If my understanding is correct (and it's entirely possible that it isn't), if something is patented it does not need to be protected. So I'm putting down some hypothetical situations that hopefully will further discussion and clarify people's opinions. Let's say I have patented technique x at my restaurant. I get a call from my friend Chef John at Doe's, a small restaurant (does it make a difference in this situation if it is nearby or not?), and he says my technique is neat and he wants to make x with it (or a variation on x). He knows this would infringe on patents, and he doesn't want to do so. Do I grant him permission? Do I charge for his use of it or not?

Now I get a call from Big Company who says they want to use the patented technique. What do I say to them? Do I tell them absolutely not or do I charge them for it? Something else? In these situations, does it matter what the technique is? If it is something more basic or an obscure technique? Does it matter if Chef John is my acquaintence or not? Does the quality of Chef John's cooking matter? Are there different conditions for whether you'd say 'yes, free', 'yes, for a price', or 'no'? Are there other possible replies?

Just some ideas for thought.

[inventolux]

Inventolux - you seem like a good guy with good intentions. I'm a good guy with good intentions but I seem to have a somewhat opposing view to you. I make a good living and I'd like you to do the same. So I'd like some education.

Here's what I am scared of. I am not in the food business. I love food and I love good restaurants. I love "Molecular Gastronomy" and other haute inventiveness. I also love a simple grilled sardine.

I've watched with horror as some predatory legal practices have moved  to Europe. For example "Ambulance chasing". The result of this is that, for example, schools daren't take their pupils on educational outings for fear of crippling litigation if someone should slip. The kids miss out on the fun educational trips overseas that I enjoyed and enriched my life. You seem to have a social conscience and I wouldn't think that you would approve of that outcome either.

In other spheres aggressive patenting of, IMO, obvious processes has led to lockdown of beneficial technologies for use by the masses. I worry not that you'll get a patent for say printing food but that techniques that would enrich our culinary repertoire would be missing entirely unless chefs pay a culinary ransom. I worry that the holding of patents will result in a net loss for the culinary diaspora as a whole.

Can you allay my fears?

←

There is no way a large corporation or even a small corp is going to enforce any patent of any magnitude against say 1000 plus restaurants using that ip without a licence. If you decide to make corn flakes sorbet, then you have gone out and purchased cornflakes to make sorbet. You have purchased the cornflakes and now you can expand upon them.

If you purchase your brand new food replicator to produce edible origami for your new japanese concept, then its yours. Hack into it and find a way to expand its capabilities. Make millions with it, be my guest. Its when another entity claims invetorship for the initial technology that becomes a problem with me. Or when the integrity begins to slip into the wrong hands. Then its time for some legal integrity.

The goal here is not ask everyone that creates edible menus for some cash in return. It is my right as a patent holder to decide who or what I licence my patent to. I choose to charge large corps and give it away to those who need it most. Is that the right thing to do? You better believe it is.

IRobots are a great example here. The CEOs of IRobot have designed their floor cleaning robots to be hackable and now we find people making these things into robots that water their lawns and cut their grass. Now thats forward thinking. Sure, there are the paranoid legal lobbyists that think they should own everything and make the masses pay for more services than they are already paying for. Thats wrong and laws should be put in place to put an end to it. The problem is who and what do we put an end to? There is and maybe will never be an answer. Just like creative individuals find ways to hack into IRobots, there will be people who find ways to rape the creative system that brought IRobot to us.

The best way for chefs to stay ahead of the game is to remember why they started in this business in the first place. They want to create food. Give the ip away to those that can create and charge those that want to sell and make millions. Use the capital for further R & D and continue to create. In the long run it improves the overall picture and balances the situation.

Patently aggressive - yes. Patent integrity - a must.

Edited April 7, 2006 by inventolux (log)

[Swisskaese]

What possible harm could possibly have been done to anybody?  Has Alinea, or WD-50 lost a significant number of customers due to this occurrence?  Has anybody's reputation been damaged?  Have any brand names lost any goodwill in their marketplace?

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What harm? Well, how about that sickening feeling in the pit of your stomach when you see your creativity being palmed off by someone else as their own. And them profiting from it? That feeling of having been in some way violated. It's really not nice.

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What, so now instead of paying $160 for the tasting menu, we are going to have to pay $200 for the tasting menu to cover the royalties that the restaurant will have to pay to all of the chefs? This is why I think this whole WD-50, Alinea, El Bulli food art is going to fly away in a few years and we will see pictures of the food design hanging in a gallery somewhere.

Aren't some of these chefs already receiving royalties for their "inventions" everyday from the meals they are selling, cookbooks they have produced, etc.?

I don't have a problem with patenting a cooking utensil, serving dish, etc. This is a given, but copyrighting popcorn dust with cheese flan or whatever, this pisses me off. I have friends, a loved one and I work in R&D for a company that spent years working on inventions that have changed the world.

Does food do the same thing? It is beautiful to look at, sometimes tastes great, brings tears of joy, gets us great sex later, helps with a marriage proposal, but does it change the world? Does it cure world hunger? Not at the prices they charge. Someone in Darfur can afford a meal at their restaurant?

Whoever said they do this to save world hunger can try and do what people in the Ben Gurion University are doing and try to figure out ways to grow crops in deserts that are pest free and produce enough crops to feed very hungry people. Is your popcorn dust or one oyster with aerated pickle juice going to keep someone from going hungry?

Edited April 7, 2006 by Swisskaese (log)

[Fat Guy]

You could say the same thing about painting, sculpture, opera, theater and film. Does it piss you off that these art forms receive intellectual property protection?