Who would have thought that recipe for Aunt Martha’s spaghetti sauce could be copyrighted or patented and turned into a moneymaker?
That would be the case if former Microsoft Chief Technology Officer and culinary enthusiast Nathan Myhrvold has his way. To date, copyright law has not applied to most recipes because they are basically instructions for combining a list of ingredients in certain proportions.
There are commercial food products that have received trademark protection for their names, and Magnolia Bakery, famous for its cupcakes, was able to trademark the signature swirl of its buttercream frosting, which it claims takes 40 hours to perfect.
Have Your Cake And Patent It Too
Myhrvold argues that recipes should be able to be protected by patents. He points to molten chocolate cake – a dessert that is popular around the world, but was created by accident – as a creation that should be patent protected. Chef Jean-Goerges Vongerichten claims to have invented molten chocolate cake in 1987 when he pulled a chocolate sponge cake out of the oven early and discovered a runny center that tasted delicious.
“If he had [been able to protect] that recipe, and got a nickel for every 100 of those served, he would own all the buildings where his restaurants are,” Myhrvold told Bloomberg News.
Myhrvold breaks down the science of cooking in his books “Modernist Bread” and the best-selling “Modernist Cuisine: The Art and Science of Cooking” published in 2011. He says a recipe shouldn’t be patentable because one has added a new ingredient or two. However, if a cook brings a novel chemical compound to a food creation that no one has used before, it deserves a patent.
Perhaps where a recipe is concocted is the tipoff as to whether it’s patentable. As the U.S. Patent and Trademark Office states on the matter, “Numerous patents on food products are issued each year. However, if you take a look at most of these patents, you'll find that the recipe was more likely to have been created in a laboratory than on a kitchen counter.”