Designing Food, Owning the Cornucopia: What the Patented Peanut & Jelly Sandwich Might Teach (The Replicator and Non-Scarcity Economics)
8 Akron Intell. Prop. J. 53 (2015)
65 Pages Posted: 27 Mar 2015
Date Written: March 25, 2015
Imagine for purposes of discussion that the technology for designing and building an actual cornucopia — something that embodies coded genetically modified organisms, or other coded techniques for producing, modifying, creating, or duplicating food (call it neo-tech food design) — exists, works, and is safe. To frame the problems of neo-tech food design, I start with what ought to be an easy case of low-tech food design, the peanut butter and jelly sandwich. Since it is a prime example of an incremental improvement invention, and hence like very many other inventions that are routinely patented, it must be asked: was there a problem? And if so, what exactly was the problem with the issuance, or cancellation, of a patent on a sandwich having a doubly encapsulated, twice sealed jelly filling, with spaced apart seals, one of which sealed capsules is peanut butter?
Based on lessons learned from the once-patented sandwich, I present two proposals. First, and as what may seem an unlikely solution, I endorse the creation of a Public Domain Protection Agency (PDPA) with resources to help resolve the problems that will predictably arise out of a cornucopia. The PDPA might also serve as a counterweight to the tendency, exemplified by the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to lock-in some of the current developed nations’ standards for patentability, worldwide. Second, I present an alternate proposal that may be more attainable: virtual field of use limitations coupled with virtual ratemaking proceedings.
Keywords: patents, nonobviousness, peanut butter jelly, non-scarcity economics, public domain protection agency
JEL Classification: K39
Suggested Citation: Suggested Citation