Protecting your Flavor

Levola Hengelo BV v. Smilde Foods BV (Court of Appeal, Arnhem-Leeuwarden, Netherlands 2018) involves a spreadable dip known as ‘Heksenkaas’ or Witch’s Cheese.  In particular, the claimant argued that it owned a copyright in the taste of its dip.

We have copyright for protection for works that excite our other senses — works with a certain look, feel, or sound. Why not taste and odor?  We have literary and audiovisual works — why not flavorful works?

As you might imagine, the court said no — taste cannot be protected under European copyright. “The taste of a food product cannot be likened to any ‘works’ protected by that treaty and, to my knowledge, no other provision of international law provides for the copyright protection of the taste of a food product. . . . I consider that the taste of a food product does not constitute a ‘work’ within the meaning of Directive 2001/29.”

Update: The Netherlands Court of Appeals case was decided earlier this year, the EU Court of Justice has now provided its own answer to the question – agreeing with the Court of Appeals and holding that

Directive 2001/29 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.

ECLI:EU:C:2018:899.

 

54 thoughts on “Protecting your Flavor

  1. 10

    link to durietangri.com

    Durie Tangri scored a complete victory for its clients Electronic Arts and Activision Blizzard in a patent infringement case relating to techniques for automated lip synchronization in video game animation. This week, the United States District Court for the Central District of California granted our clients’ motions for summary judgment of non-infringement of all asserted claims for all accused games and granted summary judgment that all asserted claim are invalid for lack of enablement. The plaintiff in the case had asserted the patents against a large group of video game developers and publishers.

    Congrats to the Durie Tangri team, including Sonal N. Mehta, Eugene Novikov, Catherine Kim, and Tim Horgan-Kobelski.

    Decision here: link to durietangri.com

    This is how it’s done, folks. I’ll repeat it again: there are literally ZERO “do it on a computer” claims that can not be obliterated, one way or the other. This will mark (at least) the second high profile incredibly junky set of claims that the CAFC has held up as examples of “important” “advancements” that were (obviously) ineligible or invalid junk. The other major case that went belly up, of course, were Enfish’s “revolutionary” g@rbage claims (all of them found to be obvious). Every time these cases are mentioned the eventual (inevitable) downfall of the 0h-so-very-“important” claims at issue needs to be highlighted. That’s not because their downfall proves that “other statutes can do the job and 101 is not necessary”. On the contrary, the fact is that the other statutes did not do the job and, as a result, ineligible and invalid claims ended up being granted and widely asserted. The better result for everyone across the board would have been for Judge Wu’s sensible earlier decision on eligibility to have been upheld with a simple statement that the CAFC “hereby adopts the decision below as its own”.

    The problems for “do it on a computer” patentees remain the same as ever: you can’t have it all ways. You can’t recite only a new function (or some other ineligible subject matter) and have an eligible claim. And you can’t enable every means that satisfies a broad data processing function and avoid the obviousness issues that — in a just and fair system — will inevitably tank the claim. And, lastly, you can’t avoid a lack of possession of an eligible claim by pointing to a structure-less abstraction, or pointing to a tangible object whose novel, non-obvious physical structure has never been described (and never will be).

    In any event, read the decision. It’s a great example of a defense strategy where, over and over again, the defendant has forced the patentee to make admissions or take positions that, when summed together, highlight the incredible junkiness of the claims.

    Ah, so much fun watching the house of cards tumble down. Thanksgiving will be extra tasty this year.

  2. 9

    link to washingtonpost.com

    Great article explaining how it’s done, and why.

    It’s actually quite easy to keep up with the propaganda of the patent maximalists because they repeat the same b.s. over and over. I was amazed recently when I checked out Big Jeans echo chamber to see if there was any development whatsoever in their thinking about subject matter eligibility after nearly a decade of pounding the same basic facts into their brains and refuting their silly mythology.

    There was no development. These people are that dish0nest, and they are that d u m b.

    1. 9.1

      You are simply way too full of yourself.

      (so very Trump of you — )

    2. 9.2

      They don’t challenge trump on his “lies” because the reporters are not concerned with his “lies”, they’re solely concerned with the story they’re trying to tell.

      Also MM, my condolences for those affected by the never-trumper shooter awhile back.

  3. 8

    I just wanted to see the avatar that Dennis uses for me. I like it.

    1. 8.1

      That is a good one.

  4. 7

    [T]he most egregious of the charges brought against World Patent Marketing, in my opinion, were the threats and intimidation directed toward complaining customers. Inventors are a hopeful and eternally optimistic bunch, that is what makes them successful. Scams that prey on that hope and optimism are an abomination, and need to be stopped.

    Wow. So I guess we won’t be hearing the endless screeching about “the pendulum swinging back”, “overturning Alice”, “overturning Mayo”, “the AIA is unconstitutional”, etc.

    That’s a positive development.

    1. 7.1

      Your ranting is noted.

      (as is the disconnect between the article against WPM and your usual feelings towards protecting innovation through a strong patent system)

      1. 7.1.1

        Best part of that entire thread is this comment from one of your maximalist buddies:

        [Whitaker] was put in place on the advice of Sam Clovis, who to the majority of Americans, is is very solid. [MM: LOL! Clovis is a traitor, first, and secondly a l ying r@t who is incapable of distinguishing a “solid” human being from a fresh pile of damp d0ggy d 0 0 d 0 0]

        Looks like Whitaker was not forthcoming about his past business dealings when President Trmp’s people vetted him. However, he will not be the guy to replace Sessions. He’s just a place-holder. Look higher up the food chain people: Christi, Giuliani, Gowdy… (hopefully not Gowdy…

        However, the GOP should rightly be on notice that we know many of them are Bush, McCain, and Flake acolytes (right Martha McSally?) and we will push all of them out. Don’t think so? Just watch us…

        Pretty sure that Dandy Don Cuillo meant “putsch all of them out.” But yes we are certainly watching LOL

        1. 7.1.1.1

          Your “one-bucketing” is noted.

          1. 7.1.1.1.1

            Remember when “anon” used to accuse his critics of being “Chamberlain-esque”?

            I do.

            Fun times indeed.

            1. 7.1.1.1.1.1

              And that has to do with…

              …what, exactly?

              Maybe if you paid attention as to why the Chamberlain comments were made…

              (Hint: they were on target and related to patent law matters — you should try it sometime)

              1. 7.1.1.1.1.1.1

                Maybe if you paid attention as to why the Chamberlain comments were made…

                (Hint: they were on target

                Meet Billy. He likes to compare critics of cr@ ppy patents to N@ zi appeasers.

                But actual fascist @ h0les don’t really bother him so much.

                Nobody could have predicted that.

                LOL

                Should I bury Billy now or just let his stinky corpse lie there in the sun for a while? It’s Friday, after all.

                1. Maybe find a proper forum for your feelings (and try to say something meaningful on the topics of this forum — you seem to get both of these things wrong way too much)

                2. You are so much like Trump that it is hilarious! Even to the point that you think you are “winning” every time you post, when it is clear to any casual observer you are not. You continue to be a legend in your own mind.

                3. it is clear to any casual observer

                  LOL

                  I’d suggest watching a bit more closely.

                  Fyi, watch this space for an update on everybody’s favorite junk CAFC case. Probably a good time for you to buy a new box of di@pers.

  5. 5

    OT but, hey, it’s the Silly Con Valley Bros who tr0 ll here make me do this:

    It’ll be decades before autonomous cars are widespread on the roads — and even then, they won’t be able to drive themselves in certain conditions, the CEO of Waymo said Tuesday.

    John Krafcik, head of the self-driving car unit of Google parent company Alphabet, said that though driverless cars are “truly here,” they’re not yet ubiquitous. And he doesn’t think the industry will ever achieve the highest driving rating of being able to drive at any time of year in any weather and any condition.

    Decades is an underestimate. As I said a few years back, it won’t happen in our lifetime.

    Keep this sort of thing in mind every time you pick up a “do it on a computer” patent application. These people are mostly full of cr @p and spreading it around is pretty much all they know how to do. Born to shove an ad in your face, and born to believe that profits equal “winning.” Terrible people.

  6. 4

    A man shouting a pro-N@zi and pro-Drumpf salute during a performance of “Fiddler on the Roof” in Baltimore has reignited discussions of anti-Se mitism amid increases in h@ te crimes in Maryland and nationwide.

    Audience member Rich Scherr said the outburst, during intermission at the Hippodrome Theatre on Wednesday, prompted fears that it was the beginning of a shooting. The man, who had been seated in the balcony, began shouting “Heil H-tler, Heil Tr-mp.”

    Yay! Freedom! Whenever I read stuff like this I think about how happy it must make “anon” feel. Did you send a note of appreciation to Rich, Billy? You know, congratulating him on fighting the “PC police”. Because that’s the worst thing ever. <– actual stated belief of "anon" and his glibertarian cohorts.

    1. 4.1

      Your dissembling is noted.

    2. 4.2

      MM, noting this was written mid-day on a work week I suspect drinking on your part was not involved, but the drunken man shouting in the theatre was not Mr. Scherr.

      Also, the drunken man shouting in the theatre was not a Trump supporter.

      Quite the opposite. Like you, he’s part of “the resistance”.

  7. 3

    I consider that the taste of a food product does not constitute a ‘work’ within the meaning of Directive 2001/29.

    Thank goodness.

    1. 3.1

      mike: I know of no objective measure for evaluating identity of taste, even using the mechanism of a “reasonable observer”.

      I am guessing that there is something out there along the lines of an “electronic tongue” that could be calibrated to produce an “objective” output of the five parameters associated with taste (salty, sweet, bitter, sour, umami).

      But why would we want to copyright the way things taste? Scr-w that.

      1. 3.1.1

        Why would we want intellectual property protection for anything?

        You seem genuinely unhappy that anything gets any type of protection (with the sole possible exception of things that take a lot of money to develop, which of course only feeds the dichotomy of you whining about the one-percenters).

        Since you have said that you are a patent attorney involved in obtaining these property rights that you do nothing but disdain, your constantly on display cognitive dissonance must be overwhelming for you “in real life.”

        Maybe you should find another line of work.

        1. 3.1.1.1

          Why would we want intellectual property protection for anything?

          That is such a powerful argument for granting individuals perpetual rights to the taste of food! You should call up Levola right now and work with them to demand a re-hearing on this topic. Justice demands no less.

          FREEDERM TO OWN EVERYTING IS TEH ONLY FREEDERM TAHT MATTERS IF WE CANT BE OWNED THEN HOW DO WE KNOW WHAT FREEDERM EVEN MEANS THESE QUESTIONS ARE SO DEEP YOU GET TEH BENDS IF YOU COME UP WITH TEH ANSWER TOO FAST

          1. 3.1.1.1.1

            ?

            You did not address the point I presented and instead created a strawman to attack.

            Try again (or for the first time).

            1. 3.1.1.1.1.1

              You did not address the point I presented

              Actually I did, Billy. I mocked your “point” because it was in@ne.

              1. 3.1.1.1.1.1.1

                What you consider addressing (and for that matter, “mocking”) is what is in@ne here Malcolm. The strawman has nothing to do with my point. You (yet again) indulge in your number one meme of Accuse Others as your own inanity is on full display.

                It’s as if you ad so full of yourself that you actually believe that your meme convinces anyone.

                1. I “actually believe” my arguments are persuasive, Billy, because they win.

                  Over and over and over again.

                2. Your “arguments” never win.

                  Ever.

                  You confuse your “arguments” with court cases (never reflecting the fact that your “arguments” are nothing more than rants of feelings about Desired Ends.

                  I suggest that you spend less time reaching around to pat yourself on the back, and spend a bit more time on cogently laying out the supporting Means (which addresses the law as written by Congress).

      2. 3.1.2

        Probably totally peripheral at this point, but yes, there is research into developing an electronic tongue, and thoughts that the receptors on the five types of taste buds might be synthesized and interactions with components of a material analyzed to determine their interactions, but this does not come anywhere close to defining taste. First, the relative numbers of the different types of taste buds and their position in the mouth differ on an individual level, and second, so much of taste is actually olfactory that you would need to include all of the different (and again, individualized) olfactory sense receptors as well. Vision is so much closer to universal.

        1. 3.1.2.1

          mike,

          Not peripheral at all – and nice note on the olfactory contribution — as I noted in the linked article, while there are 5 types of taste buds, there are sum 10,000 groupings of olfactory “types.”

          So while as you note there is work on a type of electric tongue (in the hopes of characterizing the “front end” of what is called “taste,” the full notion of that thing called “taste,” remains likely to be considered not separable from the item and the one doing the tasting (and is why “taste” can be differentiated from music and art.

  8. 2

    I appreciate the post on a European decision, but the judgment is from the Court of Justice of the EU (not the Court of Appeal of Arnhem-Leeuwarden, which is merely an appeal court in The Netherlands). And the link is not to the decision but to the advisory opinion. The actual decision dated 13 November 2018 is published here (link to curia.europa.eu;).
    Should the link not be stable, the permanent decision identifier is ECLI:EU:C:2018:899 (Google should work with it).

  9. 1

    Perhaps I am off, as I have not kept up on this, but as I recall, one of the most difficult thing about cooking and taste, is that the actual mechanism of taste is a function of both the item being tasted and the person doing the tasting.

    The same item being tasted will have more than one taste as soon as more than one person doing the tasting.

    One may aim for consistency on the front end of preparing the food item, but actual “taste” cannot account for the back end of processing the item.

    1. 1.1

      The european court walked through this issue — concluding that at this point we don’t have sufficient objective measures for taste. The claimant here suggested that the court hire a professional expert taster to provide guidance, but that approach was rejected as likely too arbitrary as well.

      I would just pause here to consider if the situation really differs here from some areas of music or art.

      1. 1.1.1

        I would differentiate from music and art.

        Music and art are more of an external appreciation (or not) of the separate item, whereas my point was that taste was not separable, and is actually completed by the consumer of the food item.

        In an admittedly imperfect analogy, there are pressure waves in the forest, but it takes human ears to have sound.

        1. 1.1.1.1

          For copyright purposes, the evaluation of music and art does not depend on appreciation but on identity, and as mentioned by others, we have objective measures for evaluating identity of pieces of music or artwork. I know of no objective measure for evaluating identity of taste, even using the mechanism of a “reasonable observer”.

          1. 1.1.1.1.1

            Nice point on “identity” – as that may be part of the issue in that “taste” as a function of identity may not exist separate from the human doing the tasting.

            In that sense, “appreciation” is not the unifying “action” across taste and music and art.

            Whereas for copyright protection (a different intellectual property than the topic of trademark), identity need not involve appreciation, and thus, need not involve the human side of “another” completing the action. This then is the direct point of contrast, in that taste (as far as I recall) does in fact require that human side of “another” completing the action.

            1. 1.1.1.1.1.1

              Apologies for any confusion with the injection of trademark….

              My oops.

          2. 1.1.1.1.2

            This is a reply to the 1.0 thread rather than any one poster. Balderdash. Heinz Ketchup has a recognizable taste. Each member of a jury could taste two samples of Ketchup (maybe one would be Catsup) and tell if they taste like Heinz or not. It matters not one iota if Juror 1 thinks Heinz tastes salty and Juror 3 thinks Heinz tastes sweet. They would both be able to tell its Heinz (or a taste alike) or not.

            I think there was a post on here a while back related to Stairway to Heaven and another song. The variation in opinions there might be with regard to taste would be no different than the variation with regard to Zep’s alleged copying. IMHO of course.

            1. 1.1.1.1.2.1

              “It matters not one iota if Juror 1 thinks Heinz tastes salty and Juror 3 thinks Heinz tastes sweet.”

              But it might matter significantly if Juror 1 thinks product X tastes very much like Heinz while Juror 2 thinks product X tastes much saltier than Heinz if Juror 1 is relatively insensitive to salt while Juror 2 is very sensitive to salt. Or if Juror 1 cannot distinguish between the bite of cilantro and the bite of paprika while Juror 2 is of the ~10% of people that think cilantro tastes like soap. Or if the addition of a very tiny amount of cumin makes a huge difference to Juror 1 but not to Juror 2. At least with a painting you could discuss colors and design, with a sound recording you can discuss hooks and harmonies; with a taste, their is no common language and no clearly defined physical measurements for the characteristics that could be discussed as points of difference or similarity.

              1. 1.1.1.1.2.1.1

                …and like you noted, each individual’s sense (and physical groupings of sensors) is unique and may vary (and in some cases, vary substantially).

              2. 1.1.1.1.2.1.2

                As I noted, there are differences of opinion as to whether musical works are derivative or significantly copied from others as well.

              3. 1.1.1.1.2.1.3

                This case is so dumb. Does juror 2 smoke. What kind of cigarettes? Benson and Hedges the very worst smelling cigarette ever made? Does juror 5 smoke cigars? Does juror 6 drink Merlot. You can’t mimic tates buds. give it up!

      2. 1.1.2

        But to your point, we can see this distinguishing in that there are aspects of visual arts in general (and optical illusions in particular) that only “work” because of the human interaction and physical processing at the receiver. The human eye has more nerve receptors than the pathways on the optic nerve, so there is some “pre-brain” signal processing.

        Do you remember the meme of the colors of the striped dress? Objectively, the wavelength of light never changed, but based on processing steps, I could see either of the color patterns.

        However, this processing is separate from the item “being seen,” whereas “taste” is defined as requiring that human processing (not separate from the processor).

        I note in your reply (caveat: I have not read the source you mention), that a human processor is offered, rather than some computer evaluator of the food item, which I take as confirming the non-separability of taste between the item and the human.

      3. 1.1.3

        At least in the context of this decision, it seems like there is a clear distinction with music and art. According to the decision, “Levola defined copyright in a taste as being ‘the overall impression on the sense of taste caused by the consumption of a food product, including the sensation in the mouth perceived through the sense of touch’.” But the copyright, in say, lyrics to music is not a copyright on a particular listener’s subjective “overall impression” of the lyrics; it’s a copyright on the words themselves, as arranged in the form of the lyrics. Different listeners might have very different impressions of the lyrics to “Baby Got Back,” but nobody disputes what the lyrics themselves are.

        Also, it seems like Levola’s definition creates issues around ripeness (no cheese pun intended) and who is a proper defendant. Levola alleged that “the production and sale of Witte Wievenkaas infringed its copyright in the ‘taste’ of Heksenkaas,” but by Levola’s own definition, mere production and even sale is insufficient. Infringing the “taste” would also seem to require the later consumption by a particular individual. By the same token, the consuming individual seems to be a necessary defendant, either along with the manufacturer, or maybe even the sole proper defendant. To be sure, one might imagine making various indirect infringement allegations, but that did not seem to be the case here.

    2. 1.2

      One of the most difficult thing about cooking,del/> coding and taste information is that the actual mechanism of taste utility is a function of both the item being tasted being used and the person doing the tasting using.

      All fixed up.

      1. 1.2.1

        Or not.

        Since your understanding of utility remains abysmal.

      2. 1.2.2

        by the way, like the “strike through” effect.

        Is that with “str”…?

        1. 1.2.2.1

          The strike tag was deprecated. You can use DEL as the replacement.

          It’s mostly used for sarcasm now ;-)

          1. 1.2.2.1.1

            Thanks!

            sarcasm

    3. 1.3

      The few (very few) posts from Malcolm that have actually come close to being on target (at least, whining about the item of topic), prompted me to take a gander into this “electronic tongue” area.

      I linked one of the interesting articles above.

      It may have been in that article that noted that while there are five “groupings” Of taste buds, the actual designation of taste ALSO involves more than 10,000 groupings of olfactory nerve processing groups.

      An “expression” of taste then (quite opposed from an objective chemical signature aimed only at the five buds) would need to involve the “identification” of the “expression” in terms of the olfactory groupings (if we wanted to separate out the ‘input’ to taste from the human processing that makes up taste).

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