Patenting food processing and flavor-enhancing techniques is a cutting-edge legal endeavor. This article reviews some fascinating new developments in food processing technology and patent litigation.
Today's patent law market basket is filled with two patentable innovations: an edible biofilm to address and prevent the problem of cherry cracking; and an acoustic sound technique designed to enhance the taste of food. On the patent litigation front, a sizable plaintiff's jury verdict in roiling litigation over patented egg pasteurization techniques shows that infringing food processing patents can lead to expensive life lessons.
"SureSeal" Biofilm and Harvesting the Perfect Cherry
Pacific Northwest rains are both a boon and a curse for cherry growers. Rain-induced cherry cracking is a perennial problem. Most growth in cherries occurs in the final few weeks before their harvesting. That is when cherry cracking susceptibility develops. Nearly ripe cherries absorb moister faster than their skins can expand. If the cherries split, a year's crop may be ruined in one fell swoop.
Manual efforts to prevent cherry splitting can lead to tragic results. After a recent brief, but heavy rainfall, a helicopter pilot and his passenger were fanning moisture off a cherry tree orchard near Wenatchee, Washington. The helicopter's main rotor clipped a power line. The helicopter crashed into the orchard. The passenger died, and the pilot suffered severe injuries.
Oregon State University scientists are trying to solve this vexing cherry cracking problem. They developed SureSeal, a hydrophobic, elastic biofilm that consists of a copolymer of stearic acid, cellulose and calcium. It significantly reduced cherry cracking in field tests. The United States Patent and Trademark Office (USPTO) recently published the inventors' patent application directed to this SureSeal innovation. It is entitled "Flexible Films and Methods of Making and Using Flexible Films."
Eating fresh cherries covered by an exogenous biofilm layer sounds unappetizing. The innovation reveals the competing tensions between growing food crops organically versus sustainably. The use of biofilms can reduce food waste, increase shelf life, and lead to less use of herbicides and pesticides. OSU scientists designed the biofilms to be edible, and possibly fortified with nutrients.
OSU's patent application is still in the early stages of patent prosecution. The USPTO has not issued any initial office action regarding the patentability of this flexible biofilm subject matter.
Acoustic Sound and Taste Alchemy
One of the more mysterious patents issued by the USPTO in June 2012 is entitled "Acoustically-Treated Food and Method for Flavor Enhancement," U.S. Patent No. 8,197,873.
The operative principle of this newly issued patent is this: a low frequency sonic transducer is immersed in a container filled with liquid. The food or drink whose flavor is to be enhanced is positioned within a range of ¼ inch to 20 feet away from the liquid-filled container and is then exposed to sound waves generated by the sonic transducer at a frequency range between 1 Hertz to about 1000 Hertz for a period of time lasting from 1 minute to 24 hours. For optimal flavor and taste enhancement, the food should be exposed to sound waves with a frequency of 600 Hz for about 30 minutes. As a point of reference, the human voice has a range of 300Hz to 3500 Hz, with most of the energy concentrated below 1000 Hz.
The '873 inventor, Alphonse Cassone, conducted taste tests to support the patenting of his innovation. The patent specification explains that:
The method of the present invention has been tested on a variety of foods with tasters reporting significant flavor enhancement. For example, the method has been tested on bottles and/or cans of wine, Perrier® sparkling water, water, milk, orange juice, and fruit including oranges, grapes, and bananas.
These foods were reported as having improved taste and texture after treatment by the methods described above. For example, pieces of fruit were tasted before and after treatment. The tasters reported that the fruit was sweeter after treatment. As another example, the bitterness from cheap wine seemed to be substantially removed after treatment. The wine and fruit also appeared to last longer than usual after treatment.
Whether the inventor's "taste tests" would withstand scientific scrutiny and peer review analysis is unclear. The taste test methodology is not discussed in the patent specification. The reasons why the taste of food may be improved through exposure to sound waves are left to the reader's imagination. Scientific validity, however, is not a prerequisite for patentability purposes.
That acoustic sounds may impact taste and flavor is an area of expanding scientific inquiry. Research is already demonstrating that background noise can affect the perceived taste of foods. In an article published in the scholarly journal Food Quality and Preference, researchers found that louder noises reduce the reported sweetness or saltiness of foods, but increased their measure of crunch. The '873 patent indirectly underscores how all sensory perceptions can come into play in evaluating the tastiness or flavor of food.
The next time you want to improve the flavor of that half-finished bottle of wine or soda that’s losing its pizzazz, you might consider adapting the '873 patent's teaching in a non-infringing manner. You could use your own voice as a "low frequency sonic transducer" and recite an appropriate incantation. After reciting your flavor mantra for the optimal 30 minutes, perhaps it just might taste better!
The Jury Verdict is In: The Pasteurized Egg Processing Litigation
Pasteurizing eggs in their shells is a complex process because the goal is to not alter the consistency of the egg yolk and egg whites during the pasteurization process. This problem is described in dry language in U.S. Patent No. 6,165,538:
“[T]he art has long since struggled with pasteurizing in-shell chicken eggs. While in-shell eggs may be heated sufficiently to destroy microorganisms, the art has not, at the same time, been able to substantially retain the functionality of the eggs.”
The '538 patent represents a breakthrough result in the art of in-shell egg pasteurization. Its method achieved a five-fold logarithmic reduction in the presence of Salmonella species that might be present in the egg yolk and albumin, while at the same time retaining the egg's functionality.
National Pasteurized Eggs (NPE) sued Michael Foods for infringing the '538 patent and two other egg pasteurization patents. In a consolidated lawsuit, Michael Foods alleged that NPE infringed three egg pasteurization patents the company had exclusively licensed from the University of Missouri. Michael Foods was the first company to brand and sell in-shell pasteurized eggs.
A number of the parties' respective claims were dismissed through summary judgment proceedings. Importantly, the court ruled that NPE infringed certain claims of Michael Foods' egg pasteurization patents as a matter of law, but that the jury would have to decide whether the infringed patents were invalid.
The case went to trial in federal district court in Wisconsin in early June 2012. After a five-day trial, the jury granted NPE a clean sweep victory through its special verdicts. The jury found that Michael Foods infringed claims of three different NPE patents, and that those patent claims were not invalid. In turn, the jury determined that the patent claims asserted by Michael Foods—that the court had already ruled NPE infringed—were all invalid. After reconvening, the jury awarded $5,981,646 to NPE in compensatory damages.
Clearly, the jury liked NPE's trial presentation and must have found it very persuasive. In contrast, they sent Michael Foods and its counsel home packing with only an expensive lump of coal to show for their litigation efforts. As of the date of this article's posting, Michael Foods is mulling over its appellate review options. The special verdict form did not require the jury to make particular factual findings that support the underlying basis for any of the ultimate invalidity findings. Hence, on appeal, the Federal Circuit can presume that all factual disputes pertaining to the invalidity findings were resolved in NPE's favor.
See M. Hansen, "Antisplit Agents Help," The Good Fruit Grower (May 15, 2012).
 See R. Steigmeyer, "Orchard crash kills 1, injures second," The Wenatchee World (June 13, 2012).
 See J. Palmer, "Background noise affects the tastes of food, research shows," (October 14, 2010), available from www.bbc.co.uk/news/science-environment-11525897 (accessed on June 18, 2012).
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