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

See all articles by Thomas Folsom

Thomas Folsom

Regent University School of Law

Date Written: March 25, 2015

Abstract

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

Folsom, Thomas C., Designing Food, Owning the Cornucopia: What the Patented Peanut & Jelly Sandwich Might Teach (The Replicator and Non-Scarcity Economics) (March 25, 2015). 8 Akron Intell. Prop. J. 53 (2015), Available at SSRN: https://ssrn.com/abstract=2585328

Thomas C. Folsom (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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