The Twinkie Liquidation: Can A Recipe Be Protected Under Patent ...

On Thursday a federal bankruptcy court approved a liquidation plan for Hostess brands, the maker of Twinkies, Wonder Bread and many other well know bakery products many of us grew up with as children. But, is the recipe for the famous confection protected under US patent and copyright law?
Roald Dahl?s ?Charlie and the Chocolate Factory?, the well-known dark fantasy in which five children win a visit to a whimsical candy company, is really a story illustrating the legal issue of trade secrecy which applies to the current Twinkie liquidation. As Fordam University law professor and intellectual property law expert, Jeanne C. Fromer, explains in her essay ?Trade Secrets In Willy Wonka?s Chocolate Factory?, the fictional Wonka?s obsession with secrecy when it comes to candy making isn?t far from reality.
Companies often go to extraordinary lengths to protect their recipes and closely guarded trade secrets. Manufacturers often treat their recipes more like state secrets requiring employees to enter into non-disclosure agreements, storing their recipes in safety deposit boxes or vaults and even restricting the number of executives with access to recipes or ingredient lists for well-known products.
After John S. Pemberton invented Coca-Cola in 1886, the formula was kept a close secret which was only shared with a small group and never written down. When Ernest Woodruff and a group of investors purchased the Company in 1919, to finance the purchase Woodruff arranged a loan and as collateral provided documentation of the formula after arranging for it to be reduced to writing for the first time. The secret formula was then placed in a vault in the Guaranty Bank in New York until the loan was repaid in 1925. At that point, the secret formula was returned to Atlanta and placed in the Trust Company Bank where it remained until recently. For many years, Mars Incorporated, the famous confectionary company that makes M&Ms, refused to reveal its president?s name, built its own machines and was even known to blindfold visiting repairmen. It?s equally famous competitor, Hershey refused to provide its employees with the proportions of ingredients in the company?s chocolate bars.
In theory recipes are patentable but often-times inventors choose not to seek legal protection because applying for patent approval with the US Patent and Trademark Office would require them to disclose proprietary methods and processes. ?Basic? recipes are ?fair game? because the basics aren?t likely to vary much. An idea must be novel and non-obvious to deserve legal protection ? sometimes a difficult standard to meet, because most recipes are combinations of widely available ingredients. Recipes are most likely to win patent protection only if they involve some novel manufacturing process or method. Several inventors, for example, have obtained patents for variations on the peanut-butter-and-jelly sandwich by rearranging the ingredients to extend shelf life. However, how many recipes are truly original? Did pasta originate in Italy or China?
Recipes may be copyrighted, which prevents others from copying and selling the instructions on how to make a product like a Twinkie or Ho-Ho, but copyright law does not protect the food itself from commercial exploitation by copycats. In other words, while not allowed to sell copies of the current Toll House chocolate chip cookie recipe which belongs to the Nestle company, we?re all free to make and even sell chocolate chip cookies although copyright protection may extend to ?substantial literary expression?a description, explanation, or illustration? that goes along with the recipe. But can recipes be considered a form of literary craftsmanship?
Food products, even the name of a recipe, may also be trademarked. Trademarks exist to identify the source of goods or services, and provide legal protection for products so long as the mark is used for commercial activity. Trademarks also include trade dress, like the shape of a bottle of maple syrup or a unique cosmetic packaging design.
An examination of the need for secrecy in this commercial sphere raises fundamental questions about the role of legal protection against the misappropriation of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent and copyright law. In the end, when the rights to historic brands like Twinkies, Wonder Bread and Ho-Hos are sold at auction to the highest bidder, who will own the exclusive right to use the recipes for those products may well not be as clear as one might presume.

Source: http://www.kliemanlyons.com/2012/12/the-twinkie-liquidation-can-a-recipe-be-protected-under-patent-and-copyright-law/

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