Can You Patent a Pizza?

Cynthia Graber and Nicola Twilley co-hosted a Gastropod podcast episode titled  Can You Patent A Pizza? (March 5, 2024, 49 minutes). Guests included Anthony Mongiello, inventor of stuffed crust pizza; Chris Sprigman, law professor, NYU; Valerie Flugge, assistant professor of business law, California State University, Northridge.

Some highlights:

FLUGGE: So there are basically 5 different types of intellectual property [copyright, utility patents, design patents, trade secrets, trademarks]… They’re not all five available. It depends on the circumstances. 

Copyright

• TWILLEY: … copyright is designed to protect creative expression…
• FLUGGE: And the courts have held with respect to recipes, that recipes are not creative expression. Recipes are really facts: a method and a procedure.
• SPRIGMAN: So, copyright doesn’t cover facts. And copyright also doesn’t cover ideas or methods or processes. These are outside the scope of copyright. So if you think of recipes at their essence, their facts and processes, it’s an instruction, right? … That’s at its core what a recipe is, and none of that stuff can be protected by copyright.

Trade Secret

• FLUGGE: Trade secrets protect information that a business keeps private and has some potential economic value. And the business develops it, takes reasonable steps to keep it secret. And if they do that, the business owner is protected to a certain extent from other people being able to access that information.
• GRABER: In our Coca-Cola episode, we described all the things the company does to keep their secret formula a secret, like keep it in a vault and only a couple of people know it at a time. And in fact, Coke stopped selling their soda in India in the 1970s because the Indian government required foreign companies to share all their trade secrets with the government in order to do business there.
• TWILLEY: And Coke wouldn’t share. Because if they told their secret to the Indian government, then people everywhere else, including in the US, could argue that it wasn’t really a secret anymore, and Coke would lose their trade secret protection everywhere. Even though India is one of the biggest markets in the world, Coke didn’t go back on sale there until the 90s, after a new government changed the rules.
• FLUGGE: Trade secrets do not protect somebody from somebody buying their food product [and reverse engineering it].
• TWILLEY: This loophole is a bit of a dealbreaker for the Big Cheese. After all, once you’ve seen a stuffed crust pizza, you can probably figure out how to make it. So actually trying to protect stuffed crust pizza as a trade secret wouldn’t offer much protection at all.
• GRABER: Another problem for Anthony is that he wasn’t running a pizza empire, and he didn’t want to. But for stuffed crust to become a reality, he would have to tell someone else how to make it. Trade secret really couldn’t be the way for him to go.

Trademark

• TWILLEY: …What about trademark, and its subcategory, trade dress?
• SPRIGMAN: Now, okay. So if enough consumers are confused, and you know what the, what the threshold is has always been a bit of a mystery, but some courts would say 15% is enough. Okay. So if 15% of consumers of these kinds of snacks are confused, then that’s a trademark violation. The senior user of that shape, essentially gets to bar other companies from using something like it. Not just fish, but whales or maybe even rockets. So I’ve got to express some skepticism, and that is that trademark law, as it’s evolved in the United States, basically thinks of consumers as morons in a hurry …
• GRABER: Chris may think that other companies should also be able to make vaguely fish-shaped crackers and that consumers are smart enough to know the difference, but Pepperidge Farm won the case…
• FLUGGE: The legal concept is, when it comes to a product design, you can’t get trademark protection until it’s acquired something that’s called secondary meaning.
• GRABER: Secondary meaning is when the thing is so famous that it’s associated with your company. Like if you see the red and white design of a can, you know it’s Campbells. Same with Goldfish, those are Pepperidge Farm’s…
• TWILLEY: Because nobody knew what stuffed crust pizza even was, it wasn’t a thing yet. And you can’t get trade dress protection until your product is a thing.
• GRABER: And there’s another problem Anthony would face. If he wanted to get trade dress protection, the thing he would want protection for would have to be purely ornamental, it couldn’t be functional at all. This limitation came up when the Japanese company Pocky tried to sue another company that made a similar-looking coated cookie treat.
• SPRIGMAN: The court in the Pocky case, and this is the Third Circuit Court of Appeals in Philadelphia. The judge is a guy named Stephanos Bibas. He wrote an incredibly thoughtful opinion, I thought, about whether Pocky could be protected by, basically, trade dress. And he said, well, this can’t be because it functions. It all functions. So how does it function? … And, Judge Bibas said, well, you know, the, the shape of the Pocky, it has this handle and the handle is there so you can eat the Pocky without getting chocolate in your hands.
• GRABER: Judges don’t grant trademark protection easily, [I assume she means trade dress] because if you get a trademark, then nobody else can ever make something [for the same purpose] that looks like your trademarked thing.
• SPRIGMAN: As long as you’re using it to indicate the source of products, that—that right can last at least notionally until the end of time. And so to withdraw a functional thing from common use, and to give a monopoly in it to one company forever and ever and ever, is a serious thing to do.

Design Patent

• SPRIGMAN: So design patents don’t protect the way things work. They protect the way an article of manufacture looks, the ornamental appearance. And you could apply design patents, for example, to the shape of a breakfast cereal.
• GRABER: Remember, you can’t get trade dress protection until your product is recognizable as your unique product by consumers, until it has secondary meaning. Well, if you get a design patent first, then you get 15 years of exclusivity to build up your rep in the marketplace.
• TWILLEY: And then when the design patent expires, you’re more likely to qualify for trade dress protection.
• GRABER: Anthony’s new pizza *would* look a little different from a regular pizza, because its crust would be so huge. But there’s a problem: a product can’t get a design patent if the function of the new invention causes the design. A stuffed crust pizza only looks the way it does because there’s stuff in the crust that makes the crust bigger. The function causes the design, so he couldn’t get a design patent.

Utility Patent

• FLUGGE: First of all, it’s got to be useful. Secondly, it has to be what they call novel, which means it’s got to be new. It can’t be something that’s already been out there. And then in addition to that, it has to be what they call non-obvious. So it has to be something that wouldn’t—if somebody’s in your same situation, wouldn’t say, oh, that’s really clear. That’s easy. That doesn’t take a lot of thought to get to that next step.
• GRABER: Valerie told us that despite these strict criteria, there are quite a few foods that have utility patents, that were able to prove to the US patent office that the food or maybe the technique to make it was novel and useful. There’s microwaveable sponge cake, and an instant stuffing mix, and probably my favorite, Spaghetti O’s. Putting saucy pasta in a can was a real step forward for children everywhere.
• SPRIGMAN: The real problem was, if you cooked the spaghetti first and then put it in the sauce in the can, it would get very mushy. So Campbell’s came up with a way of actually putting, essentially, raw spaghetti in the can along with sauce. And they came up with a way of both cooking and agitating the can so that the spaghetti cooked in the can. So this was a pretty famous patent back in the mid-twenties, long ago expired..
• MONGIELLO: And I did it. It took me over three years to achieve my patent. The examiner in the patent trademark office was having a hard time conceptually understanding what this product was. He told my attorney that, oh, I, I can’t get a patent because it sort of infringes in an apple turnover or a ravioli. And I had to fly my attorney, to the patent trademark office, for him to sit down face-to-face with the examiner, to explain to him: this all is about a pizza. And after he came back, I was awarded my patent in 1987, patent number 4661361.

Pizza Hut Infringement Lawsuit

• TWILLEY: The case was tried by a judge, as patent cases usually are, rather than by a jury. And in the end, the judge ruled against Anthony. He based his decision on two things. One, he said that Pizza Hut hadn’t infringed the method, because Anthony had described crimping the edges of his pizza innovation to create individual slices, and Pizza Hut didn’t do that…
• GRABER: But the judge had another comment when he ruled against Anthony. He said that the patent was not valid, because there had been prior publication of a similar technique in a Women’s Day magazine cookbook called Encyclopedia of Cookery. Basically, the judge invalidated the patent.
• FLUGGE: That can happen. A judge can say, the U.S patent office should not have granted that patent in the first place. The difference being is that when it goes to trial, the judge is hearing more evidence than the patent office examiner does when they decide whether or not to deny or grant the patent.
• SPRIGMAN: And that sounds to me roughly like a good result. Because, you know, stuffed crust pizzas as a genus, I think that that’s probably too broad to be owned.
• MONGIELLO: So what I’ve learned from that, and I’d like to teach everyone, is if you have a concept, first of all, run to market as soon as you can. So in my world and in my business, all I do is I, I’m there first.
• SPRIGMAN: So the cronut is an interesting example of an early mover, an innovator, who had a period of exclusivity before others figured out how to produce the cronut well, right? And, and reliably.

GRABER: Neither Chris nor Valerie thinks our IP system is perfect. One issue is that these types of legal protections mostly help out people and companies with deep pockets. Because they’re the ones who can afford to sue for any kind of infringement, and they have the resources to keep a lawsuit going.

FLUGGE: Rarely do you see the little guy coming out on top.