Imagine for purposes of discussion that the technology for designing and building an actual cornucopia—something that embodies code, genetically modified organisms, or other 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 cancelation of a patent on a sandwich comprising a doubly sealed, doubly encapsulated jelly filling with spaced apart seals, one of which capsules is peanut butter?
Based on lessons learned from the once-patented sandwich, I present two proposals, in the alternative. First, and as what might 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, world-wide. Second, I present an alternate proposal that is more attainable: (1) virtual field of use limitations, and (2) virtual ratemaking proceedings. This last proposal can be practically implemented by a revitalization of the beneficial utility (or ordre public) doctrine or by a purposive reconsideration, and discretionary implementation of existing remedies under current patent law. Preparing in advance for the problems of neo-tech food design has the advantage of preserving the system of patent law, rebalancing it in the interest of justice to ensure an economic return to inventors in global markets while avoiding the charge of profiteering on hunger in certain less fortunate markets. This is a particular instance of a larger problem. The problem is that some of the new technologies extend the unexplored limits of non-scarcity economics to a degree not previously seen in patent law. This, in turn, challenges the “justice” of the conventional patent system.
Folsom, Thomas C.
"Designing Food, Owning the Cornucopia: What the Patented Peanut Butter & Jelly Sandwich Might Teach About GMOs, Modified Foods, the Replicator, and Non-Scarcity Economics,"
Akron Intellectual Property Journal: Vol. 8
, Article 3.
Available at: https://ideaexchange.uakron.edu/akronintellectualproperty/vol8/iss1/3