A Right to the Joy of Chocolate
Jacob Sullum | June 28, 2007, 10:40am
Mort Rosenblum, author of Chocolate: A Bittersweet Saga of Dark and Light, is outraged that candy makers want the FDA to let them replace cocoa butter in chocolate with other vegetable fats:
The proposal would widen the gap between good and awful. Industrial food companies could sell their waxy cocholat for less. But purveyors of the real thing have no corners to cut. While discerning chocoholics will fork over whatever it takes, those who can't pay will never know chocolate....
Too much of what we eat is already ersatz-virtual, like "farm-fresh" Frankenstein produce or "home-baked" chemical cookies. No one who has savored real chocolate can be eager to see our beloved Theobroma cacao, the elixir of the gods, suffer this fate.
To sum up, the vast majority of consumers are perfectly happy to eat any old crap labeled "chocolate," but they don't know what they're missing because real chocolate, the kind "discerning chocoholics" like, is too expensive. And if chocolate makers save money by using cheaper substitutes instead of cocoa butter, will that make the good stuff any less affordable? Rather than demanding that the FDA keep chocolate real (a battle that surely was lost with the acceptance of "white chocolate," if not with the introduction of milk chocolate, the kind most people seem to prefer), shouldn't Rosenblum be calling for a chocolate subsidy program to uplift the taste buds of the masses? After all, as he puts it, "everyone has a right to the joy of chocolate." And if it turns out that most people still prefer Hershey bars, Snickers, and Reese's Peanut Butter Cups, Rosenblum will just have to face the hard truth that only especially sensitive people like him (along with the gods, presumably) can discern the superiority of the real thing.
Clarification: The "ersatz-virtual" chocolate that Rosenblum decries would still be made with cocoa mass for the flavor, but the fat, which provides texture, would be different.
Dave W. | June 29, 2007, 8:46am | #
As a patent agent, I'm still scratching my head about the patent thing. How in the heck do you get a design patent for an invention that doesn't have any design aspects to it?
It seems to me that only a very few "inventions" would pass that test--you've got to have SOME ornamental decoration on the thing to even try this mess. (probably why the diagrams were modified as mentioned.)
You don't need "ornamentation" to get a design patent. You need an ornamental design, which may or may not include anything a lay person would consider as ornamentation. The most recent exposition of the line between functional designs versus ornamental designs is given in this 2006 case:
http://www.finnegan.com/news/fedCirDecisions/06-1169%2011-17-06.pdf
In this case, Fed. Cir. says that the arrangement of blank stickers (on a blank sticker sheet) may or may not qualify as an ornamental design. There certainly are limits to what you can get a design patent on, but curlicues and gargoyles or graphics are not a requirement.
In
In Daniels, the case about the design patent application with added graphics that Mr. Bender did not file, but was trying to help fix, the object was some kind of aquatic trap, I think a crab trap IIRC. It did have an unusual shape, at least compared to other objects I am familiar with. The seaweed graphic that AIC added was probably not that helpful even to bestow novelty and non-obviousness in the design patent senses of those patentability requirements. AIC was stupid to add the seaweed in that case, not strategic. If Mr. Daniels could have gotten his design patent application amended to remove the seaweed (IIRC they would not let him), then his design patent, while not as good as a utility patent, probably would have had some non-negligible commercial value.
And given that you only have one claim (the ornamentation itself) and the USPTO can ransack through all its prior ornamentation files (not just in design patents, but also in utility patents), I really don't see what this group thought how they would benefit from this.
They don't search based on curlicues or gragoyles or graphic. They look at the overall shape of the product to see that it is: (i) new / non-obvious; and (ii) not entirely dictated by functional concerns. Lots of products have new shapes. Just looking at the objects of my desk, I see the following objects with cool shapes: (i) a desktop computer speaker, (ii) a four-color bic pen, (iii) a weirdly shaped pomegranate juice bottle, and (iv) a shapie marker.
You may want to read the St. John's case linked above, because design patents aren't unattainable or useless as you seem to think, grumpy realist, and your clients deserve to know about the option where feasible.
