Friday, September 5, 2008

Food, or rather drink, for thought

I'd say the staff in the Government Information Center represents a pretty fair sample of San Franciscans as a whole, and, as such, we have among our ranks several restaurant enthusiasts. That explains how an interesting intellectual property quandary came to my attention recently.

Here's the scene: there's a hot new restaurant in town, and much of the buzz surrounding the restaurant emanates from a renown bartender who has come up with some edgy cocktails to complement the restaurant's largely experimental menu. The fledgling restaurant seems to be getting a boost from people who want to taste this bartender's signature drinks.

Now, judging by the portrayal of the restaurant business based on what I've seen on TV dramas (admittedly not the most reliable source of information, but what am I, some kind of librarian?), the kitchen of a hot dining establishment is a pretty high-stress place. It wouldn't be surprising, then, to learn that said bartender has parted ways with the restaurant.

And now for the intellectual property question: can the restaurant keep serving the cocktails?

In this blog, I've already discussed at length the difficulties surrounding intellectual property and foodstuffs. The same would probably go for drinks. It's tricky to satisfy the non-obviousness requirement for a patent when the invention is a combination of known ingredients. To qualify for a patent, the result would have to be surprising to a person with reasonable skill in that area. That would mean that the combination of ingredients would have to be be surprising to, say, a bartender. And by surprising, I don't think that "wow, this tastes like chocolate" or "I'm really surprised that this actually tastes good" would qualify. If you mix vodka, cranberry juice, amaretto and lime and it suddenly turns into breakfast cereal, maybe. But probably not.

How about copyright? The drink itself wouldn't qualify (it's not a literary, dramatic, or artistic work). The drink description, as written on the menu, is certainly under the purview of copyright. That wouldn't mean that the restaurant couldn't continue to make the drink, but, if the bartender owned the copyright to the description, they'd have to change it. But, since the bartender would have created the description in the course of her normal work duties, the employer (the restaurant) would have a pretty strong claim that it was a work made for hire, meaning the employer would own the copyright anyway.

There doesn't seem to be much recourse for a jilted bartender leaving a restaurant. The best way to retain control over a drink recipe would probably be to keep it to yourself. Hey, it's worked for Coca Cola for a long time.

I should note that all of this is speculation. Nobody around the office has actually heard of any bartenders or restaurant owners getting into a scuffle over improper use of a drink (which is different from people getting into scuffles over improper behavior after a few drinks).

There is, however, a lesson to be learned here. The next time someone offers you one of their "patented [insert drink name here]," you can say something like "You know, I find it highly unlikely that your cocktail, regardless of how unique and tasty it is, satisfies the non-obvious subject matter requirement adopted by the USPTO as set out in Title 35, Section 103 of US Code." You'll be the life of the party!

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