What a Slab of Steak Can Tell Us About Food Patent Law

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June 21 2012 7:45 AM

More Than One Way To Butcher a Cow

What a slab of steak can tell us about food patent law.

Veal sirloin steak.
Is a cut of meat really eligible for a food patent?

Photo by Paul Cowan/iStockphoto.

Read more from Slate’s special issue on the future of food.

A chef, a meat scientist, and an Oklahoma State food researcher walk into a beef summit in Chicago. It sounds like the setup to the world’s nerdiest gastronomy joke, but what actually happened one Tuesday this spring was that the trio unveiled their Vegas Strip Steak™, taken from an undisclosed part of the cow that has supposedly only ever been used for burgers, and proclaimed the cut of beef so earth-shatteringly original that they will be filing a patent for their knife strokes.

The news struck a nerve in the blogosphere, with responses ranging from ridicule to, in the case of Slate’s own Matthew Yglesias, bemusement. But the mocking responses don’t totally add up. People readily accept that industries like manufacturing or pharmaceuticals deserve legal protections for their inventions—so why do we get so uneasy when our taste buds are involved?

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Patent law’s roots extend back to medieval times in England, and at its essence, it’s barely changed at all. The concept is to spur innovation by giving inventors the exclusive right to profit from their creations for a fixed amount of time (usually 20 years). Though the first patent on U.S. soil may have been for a method of making salt, Americans still tend to take issue with intellectual property being applied to food. Eating is such a basic, visceral human need that we switch into outrage mode when we hear about someone “owning” some aspect of our consumption. Food is something we share and value as social beings—how can a company possibly declare a monopoly on processed cheese or the act of putting a cucumber between two pieces of bread?

Claims like these are made every day. Last year the United States Patent and Trademark Office approved nearly 1,200 patents associated with Food or Edible Material—a drop in the bucket compared to the 247,000 total grants, but hardly small fry (though fries, incidentally, have been patented, too). Most are filed by large industrial producers and restaurant chains though there are also a handful of creative chefs who have patented everything from flavored forks to inkjet-printer sushi.

Given the restaurant industry's historically open-source atmosphere, many of its members are wary of intellectual property, even if they stand to potentially make money from their innovations. (“We’re all standing on the shoulders of chefs who came before,” says Wylie Dufresne of New York’s wd~50.) Part of their reticence is practical: Patents can be costly and time-intensive to acquire, and your average sub-shop owner can’t realistically enforce a patent short of jet-setting around the world to spy on competitors.

The recent influx of culinary copyright and plagiarism cases—cookbook authors bickering about recipes, New York chefs suing each other over lobster rolls—reflects rising financial stakes in the industry. Still, while copyright law draws a clear line in the sand on food writing (cookbooks are protected, but the individual recipes within them are not), patent law is more amorphous, relying on broad benchmarks like the “nonobviousness,” novelty, and utility of the proposed invention. The only way to figure out which inventions can be patented and which ones can’t is through trial and error. McDonald's’ “toasting of a bread component?” No, thanks. “Edible cardboard?” Welcome to the club.

Which raises the question: Is something like the Vegas Strip Steak novel, useful, and nonobvious enough to join such esteemed company? To be clear, the team isn't claiming any particular part of the cow because patenting an animal is impossible (unless it's genetically engineered for science, but that's another issue). Patenting a specific food product based on technique can be tricky: In 2005 Smuckers lost the patent for its Uncrustables line of crustless PB&Js after USPTO examiners pointed out that the company’s method of crimping the sandwich’s edges ripped off hundreds of years of Italian ravioli-making.

Beyond their overall skepticism about culinary IP, people instinctively object to patenting the Vegas Strip Steak because cutting meat somehow feels noncreative. At a literal level, the process is reductive as opposed to additive—rather than conjure an object out of thin air, it carves out part of something natural that already exists. But butchery has long since transcended its humble roots and reached a new level of artistry: According to law professor Chris Buccafusco of the Illinois Institute of Technology, butchers could make the argument that they innovate much like genetics researchers, who earn patents for the ways they isolate genes. Plus, legally speaking, patent eligibility isn’t about whether a process adds or subtracts but the extent to which it helps the inventor's industry.

Though not every single one of the 50 or so discrete cuts of steak [PDF] have patents, there are dozens of meat-production processes in the USPTO archives. About 30 claims have been granted to a man named Eugene Gagliardi Jr., who over the last three decades has been patenting procedures for making beef rounds, chuck rolls, infant-friendly hot dogs, and more. In the ’00s Gagliardi was inspired to butterfly a breaded chicken breast and cut it into petal-like slivers to keep the meat moist. Voila: Popeyes’ Rip’n Chick’n was born (and promptly patented). Gagliardi says the cost of not protecting his work can be enormous, like when his Steak-umm sliced steak became the target of knock-offs in the ’70s. Patenting meat products might seem superfluous or even silly, but not doing so can result in your piggybacking peers bringing home a whole lot of bacon that’s rightfully yours.

There’s still ample reason to be skeptical of the Vegas Strip Steak. The cut’s flashy website, its trademarked name, and the secrecy surrounding its exact anatomical location reeks of it being a PR move: The team’s application has essentially served as a $625 advertisement that, at best, will allow them to license out their sexy “patented” steak and, at worst, has already given them a hefty helping of media buzz. Discerning steak-lovers describe the Vegas Strip Steak as a ruse to increase profit margins on burger beef; the National Cattlemen’s Beef Association has basically admitted to doing just that with the Denver steak. Alas, ethicists may be disappointed to learn that marketing and money-grabbing are completely irrelevant to the legitimacy of a patent application when it hits the USPTO’s desk.

Of course, patents aren’t the only way to go when it comes to protecting edible innovations—the steak scientists could have opted to keep it a trade secret, an approach that corporations employ all the time so that they can hoard an invention indefinitely and not have to disclose their methods. The downside, says the International Culinary Center's Steven Shaw, is that anyone who separately “discovers” or reverse-engineers the same innovation can use it or even patent it themselves. Taking a sip of Coke doesn't mean you'll be able to ascertain its mysterious trade-secret formula, but any butchers worth their salt who see the Vegas Strip Steak can likely figure out how to slice it.

That scenario is precisely what this steak patent guards against. Your grill-master dad need not worry about a team of lawyers tracking him down at your family barbecue, but larger meat producers like Tyson Foods are on notice. If the patent is approved, any companies eyeing the new cut will have to either wait 20 years to produce it themselves, buy a license to legally sell it now, or produce it without approval and risk being litigated. (And corporate food lawsuits can get nasty: Agricultural conglomerate Monsanto has repeatedly sued local farmers when the wind blew the company’s patented genetically modified corn seeds into their fields.)

If the Vegas Strip Steak demonstrates anything, it’s that nothing about intellectual property is cut and dried—not even massive slabs of cow carcass. We can’t determine if a food innovation should be patented by looking at its surface: It’s about the context, not the concept. Provided an invention is creative and original enough, it deserves legal protection, whether it's a hunk of beef or double-sided sheets of inkjet sushi.

Also in the special issue on food: five “food frontiers," including technologies to make diet food tastier and fight salmonella; small-scale farmers decide whether to embrace automated agricultural equipment; why the electric rice cooker may be the most important kitchen tool of the future; how we can feed ourselves in space; the United States and Europe switch perspectives on GMOs; celebrating the inevitable decline of the cookbook; and the case for bringing back home ec. This project arises from Future Tense, a joint partnership of Slate, the New America Foundation, and Arizona State University.

Adam Conner-Simons is a freelance writer based in Boston.

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