Back to Specialty Food News

Expert Discusses Ins, Outs of Intellectual Property

Specialty Food Association

David Postolski, intellectual property attorney and senior partner at Gearhart Law LLC, discussed some of the different forms of intellectual property protection that specialty food brands should understand, during last week's SFA Maker Prep webinar, “Patent or Trade Secret? Understanding Intellectual Property Protections.”

Postolski has experience working with chefs and specialty food brands, helping them understand what processes can be protected.

“America was built on the idea that inventors or people with great ideas would be sharing their discoveries…the government wanted to make sure that if you did that, [they] would grant you the exclusive right to that," said Postolski. "This has been modified into the modern definition, where IP is “the physical embodiment of intellectual efforts.”

One's idea needs to be put into a patent, trademark, or copyright, which if granted, becomes the brand's property. 

The three forms of IP were illustrated during the conversation, with an emphasis on the fact that if the ideas themselves are not protectable, they cannot be covered by the following:

• Patent: a set of granted rights for a limited time period in exchange for public disclosure of the invention

• Trademark: exclusive rights in a sign or symbol used in commerce to identify a product or service source

• Copyright: a bundle of exclusive rights to copy, distribute, adapt, perform, and display work for a specific time period

In all three cases, physical documentation is protected, like a scientific formula or recipe, a design, or a written work.

The pros and cons of two protections: patent, which is publicly protected by the government, and its counterpart trade secret, which is privately protected, were also considered.

“Getting a patent is a choice you make…you don’t have to take that deal,” Postolski explained. KFC, Coca-Cola, and Thomas’ English Muffin do not have patents for their products, for example, but they are protected by trade secrets.

 A trade secret is a protection where every entity that knows about the secret is specifically prohibited by a confidentiality agreement to share the secret, including people in the organization, and in the supply chain. If even one person is not under a confidentiality agreement, an argument can be made that the “secret” is not so secret, and people can use your trade secret item without legal repercussions.

Although trade secrets can be risky, the clear advantages are the fact that it is not limited by a time period, it goes into effect immediately, is free, and doesn’t require the company to divulge the invention. Legacy companies like Coca Cola have held their trade secrets for over a century.

Patents on the other hand, last for 20 years, carry costs, and makes the invention public. It is important to consider, however, that patents are powerful, in that if a business suspects someone is using a patented invention, it is up to the alleged actor to prove it is not infringing on the patent, rather than the company with the patent.

To learn more about how your specialty food business can leverage intellectual property protections, watch the webinar on demand in SFA’s Learning Center.

Related: Video: Selling to Supermarkets; Proposed Revisions for Organic Standards for Livestock, Poultry May Affect Specialty Food Makers