The Secret Ingredient

This past week, I had the opportunity to travel with the Bainbridge Island 14U boys’ water polo team (GO RAY!) to the 2016 Junior Olympics – held in and around San Jose, California.  The events were exciting, and our minor charges were well-behaved.  All was good with the world.

But San Jose, as it turns out, is quite hot in late July – with temperatures hovering somewhere between the face of a skillet placed on high heat and the surface of the sun.  And San Jose has essentially no shade, the pools were all outdoors and the bleachers were made of some new type of concrete that appears to absorb heat at a remarkable rate.  All together, these conditions conspired to make the adults on our trip long eagerly for the hotel bar at the end of the day.

The bar was not extraordinary.  But it was air conditioned and had an affable guy standing behind it and serving drinks.  Also, the patrons consisted entirely of other water polo parents and coaches, giving the bar a certain conviviality.  All in all, it was quite pleasant.  A few drinks in, after many of the other parents had retired to their rooms to slather tubes of aloe onto sunburned skin, I struck up a conversation with the bartender.

This fellow, who expressed enthusiasm for his craft, had not been tending bar long.  But he had already begun to create his own cocktail recipes – a process which he found quite rewarding.  I sampled one – a concoction of two different types of rum with fruit juice and a thin slice of tart apple for garnish – and it was enjoyable though perhaps a bit sweet.

Recipe creation is a funny thing.  It takes creativity and effort – the so-called “sweat of the brow.”  We typically like to reward the combination of creativity and effort by allowing the person whose brow happens to be sweating to receive some manner of intellectual property protection.  But recipes are not well protected under our current intellectual property laws.

According to current case law, recipes themselves (i.e., the simple listing of ingredients of a dish or drink along with a description of how to put them together to achieve the finished product) are generally unworthy of patent or copyright protection. To be patentable, in addition to a list of ingredients and how to combine them, the invention must also be “novel” and “nonobvious” as determined by 35 U.S.C. 102 and 103.  My bartender may or may not have created a drink that was novel.  (In fact, I suspect that it was not – since I’d previously sampled something fairly similar.)  The harder question, however, is whether his concoction was “nonobvious”.  To be so, his recipe can neither have existed before, nor be an obvious improvement or alteration of a previously known beverage.  This last bit is tough because it is determined by the legal standard of whether someone with reasonable skill in the art (here, the art of mixology) would have thought to make the improvement or alteration.  That’s a tough standard to meet in the world of bartending.

The simple listing of ingredients in a recipe is generally considered to be a statement of facts – which does not qualify as original authorship under copyright law.  And the instructions for combining those ingredients seems to fall squarely within a list of exclusions to what may be the subject of copyright under 17 U.S.C. 102(b) – as they represent a “procedure” or “process”.  So, standing alone, the recipe for a new drink – no matter how delicious – may not be sufficient to provide its inventor with copyright protection.

What then should the affable bartender with a portfolio of new recipes do?  How can he benefit from his creativity and effort if this is the state of the law?

Well, for starters he could become some sort of celebrity bartender – known worldwide for his delicious creations and being invited to tend bar at luxurious nightspots all over the globe.  Sounds fun.

But failing that, he might also compile these delicious creations into a book.  You see, even though recipes themselves generally fail to qualify for copyright protection – books of recipes – particularly books of recipes containing original text describing the origin or inspiration for the creation, clever anecdotes, original photographs or other works of authorship – typically do qualify for copyright protection.  And if you can copyright it, then you stand a chance of being able to sell it.  Note that this does not mean that the recipes contained in the book are protected.  On the contrary, the recipes could still be extracted from the book and used without the author’s permission (or ability to recover any damages for copyright infringement).

If he doesn’t want to put the recipes in a book, what can our ambitious bartender do?  Well despite the fact that neither the ingredients nor the process can be protected under copyright –intellectual property protection is still possible; our affable bartender could seek instead to profit from his concoctions by keeping them secret.  While this seems somewhat counterintuitive, the fact is that what is likely the most valuable beverage intellectual property in the world – the recipe for Coca-Cola – is protected in exactly this fashion.  One can imagine a scenario in which our  bartender/entrepreneur (bartenderpreneur?) founds an academy to teach the secret ingredients and procedures for making his delicious concoctions – with students who pay for these lessons and are bound to obligations of confidentiality.  Alternatively, perhaps our bartenderpreneur (I rather like that – think I’ll trademark it myself) might open his own line of signature bars and taverns in which his drinks are served by employees who are similarly bound to confidentiality.  In either case, the drinks would need to be prepared in secret – otherwise trade secret protection could be lost.

So keep at it young bartenderpreneur™, and keep the innovations coming.  There is light (and potential profit) at the end of the tunnel.

(And let me know if you need someone to sample your creations – you know, for R&D purposes).