In September, 2011, Oklahoma State University filed a patent application on a method
of producing a new kind of steak, as well as the resulting steak itself. The so-called Vegas Strip steak. Believe it or not, the Vegas Strip has
never existed before. Now, it may
have been made accidently sometime in the last 50,000 years, but if so, there
is no proof. Nowhere has it been
written down, and nowhere has it been offered for sale. It comes from a part of the cow (the
subscapularis) that is normally converted into hamburger or left on the carcass
to become part of another cut of meat known as “chuck.”
This METHOD for producing the Vegas Strip, as well as the steak
that results, actually satisfies the three criteria for patentability: novelty, unobviousness, and
utility. Novel because no one has done it before,
at least as far as we know; unobvious because it is not an obvious extension of
what the world already knows; and useful, because, well, it is a steak, it tastes
good, and conservatively it adds perhaps an additional $2 to the value of a
beef carcass in an industry that is scrambling for pennies. Seems useful to me.
Now, applying for patents is something we do all the time at
OSU, about 15 per year. And
normally they are not controversial—new vaccines, machines, etc. But applying for this steak patent
caused a real stir in the blogosphere.
You’d think we had violated a law of the universe. The vast majority of the
comments/objections were variations on the theme of, “You can’t patent a
steak!”
Really? Well,
why not? There are many patents on
meat processing. For example, U.S.
Patent No. 8,105,137, issued in 2012, covers a method of cutting up a chuck
roll. U.S. Patent No. 7,214,403,
issued in 2007, covers a method of boning hams. And proving that the concept of patenting cuts of meat
is nothing new, U.S. Patent No. 1,381,526, issued in 1921, covers a method of
cutting up a tenderloin.
So clearly we can, theoretically, patent a steak—if it is
novel, unobvious, and useful.
But perhaps the objection is not so much based on whether
you can technically patent a steak, but whether you should. Some people seem to think such a patent
is a tad unethical—like maybe, well, steaks belong to everyone. Or as one commentator wrote, “You mean
you are going to sue me when I eat my steak?” Or maybe due to the fact that the subscapularis muscle is
produced by a cow, the steak produced from that muscle is thought to be a
“natural product,” and patenting a “natural product” bothers folks at some deep
intuitive level. This is akin to
the fuss back in the 1980’s about patenting plants and animals (“But you can’t
patent life!”). Or the disputes in
the 1990’s and 2000’s about patenting DNA.
Actually, the history surrounding the patentability of
“natural products” is very VERY interesting. And the soundness of the logic ebbs and flows over time. The basic objection to patenting a
natural product is often framed as a question: “How can you obtain a monopoly on something produced by
nature?” And the answer most
commonly given is, “You didn’t invent it because it was already there!”
On the surface this seems to make sense—until you start
looking at particular examples.
Then it seems to make somewhat less sense. And that is because finding something in nature “that is
already there” constitutes a “discovery.”
And discoveries are by their nature very difficult to come by, and by
their very definition are novel and unobvious. And, of course, they may be useful.
Take DNA from humans, for example. I recently blogged about the Supreme Court decision in Molecular
Pathology v. Myriad Genetics Inc., so I won’t go through it in detail again,
but in fact the Myriad decision and OSU’s patent application on producing a new
kind of steak are closely related.
And that is because they both revolve around the issue of
“natural product” patenting.
Over the past 120 years the courts have consistently agreed that
“natural products” are not patentable.
However, the definition of what is and is not a “natural product” has
varied considerably over the years, and its history consists of a series of
reversals by the courts.
Arguably the most famous case in this area concerned a
patent that issued in 1903 covering adrenaline, which had been isolated from the
suprarenal glands of cattle, sheep, etc. (U.S. Patent 730,176). Adrenaline was marketed by Parke, Davis
& Co. as a drug to treat asthma and to stop bleeding from minor surgeries,
so it was clearly useful. But
obtaining the patent was difficult nevertheless. The patent examiner at first argued that isolated adrenaline
was the same as naturally occurring adrenaline—in other words, it was a natural
product and therefore not patentable. The inventor was eventually able to overcome these objections
by arguing that, as a purified product, the isolated adrenaline was in fact different
from adrenaline as it existed in the body.
I cite this patent because its wording—that an isolated or
purified product is different from the product as it appears in the body—became
the basis for the patenting of many natural products (such as insulin, claimed
in U.S. Patent 1,469,994, which issued in 1923). The same logic was used right up through the biotechnology
revolution of the 1980’s and continues to be used today. Well, almost.
The recent Supreme Court decision in Molecular Pathology v.
Myriad Genetics, Inc. has muddied the waters considerably, essentially ruling
that isolated DNA is NOT patentable—and requiring that DNA be isolated and
CHANGED in order to be patentable.
This decision has caused much consternation and uncertainty in the
patent world, especially with respect to “natural products” other than DNA.
And so, finally, we have come back around to the opening
question of this blog—can you patent a steak?
I would argue that the answer is “yes,” if the isolated
steak satisfies the criteria of novelty, unobviousness, and utility and its
final form is different from that in which it exists in the animal. This result is consistent not only with
meat processing patents in the past, but also with the recent ruling in Myriad.
And that is because the Vegas Strip steak has actually been “abstracted,”
(cut out of) the subscapularis muscle, and looks nothing like that muscle does when
it is still inside the animal—much as Michelangelo’s statue of David looks
nothing like the chunk of Carrara marble that it came from.
So there. You
can patent a steak. I think. We will know for sure in 2-3 years, which
is the amount of time that the U.S. Patent and Trademark Office generally takes
to decide such things.
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