New O.J. Trial: Recipe for Disaster

Talk about hoarding the fruits of innovation! Talk about a juicy patent dispute! I know I should be chronicling cutting-edge fights over rights to nanotech devices, genomic tags or esoteric new software applications. But let’s face it: an all high-tech diet can be hard to swallow. So on today’s menu I’m serving up nothing but 100 percent pure, premium, not-from-concentrate Florida orange juice.

You see, something’s gone sour in the orange grove. In an all-too-common tactic, Tropicana, a division of PepsiCo, is abusing the U.S. patent system to-please excuse the pun-put the squeeze on its competitors. And I’m convinced the case offers an important cautionary tale about innovation today.

People have been growing citrus in Florida’s sun-drenched groves for a very long time, putting a lot of effort into caring for the trees and figuring out the most efficient ways to harvest the fruit. But making orange juice remains a fabulously straightforward process: you pick the ripest oranges you can and press the juice from them, just the way nature made it, adding nothing.

Here’s what’s happening: Valencias are the oranges of choice for the popular “not-from-concentrate” juice-the refrigerated stuff that comes ready to drink in cartons or plastic jugs. But Valencias are a late-season variety. So growers have put a lot of time and money into developing earlier-ripening varieties that can match Valencias’ sweetness and rich color. Much of this grower-funded research has been done over the past decade at the Citrus Research and Education Center at the University of Florida.

But now, Tropicana has found a way to get a proprietary lock on this research. Believe it or not, U.S. patent 6,143,347 grants the firm the exclusive right to blend its juice from certain particularly desirable early-season oranges, including varieties called Earlygold, Ruby, Itaborai and Westin. Tropicana was already the biggest purchaser of these orange varieties. Now, as a practical matter, its patent guarantees it a monopoly by legally preventing other orange juice processors from buying these varieties to make any blend of not-from-concentrate juice.

Why would the U.S. Patent Office hand out a 20-year monopoly on something like this? I think it is because the good people there have lost track of what an invention is. By no stretch of the imagination has Tropicana patented an invention. It has patented a recipe. And it is a recipe for disaster with implications far beyond the breakfast table.

The difference is subtle but tremendously important. To be eligible for a patent, an invention may draw upon existing materials, so long as it combines them in a novel and useful way. If I came up with a blend of orange juices that could cure cancer, now that would be a novel use worthy of patent protection. But Tropicana makes no such claims. On the contrary, what distinguishes most recipes is that they yield nothing unexpected beyond the combination of their ingredients. Your juice blend might taste better than mine, but that’s not enough to be considered a useful new invention. That’s why, historically, recipes have not been able to surmount the U.S. Patent Office’s sensible “usefulness” hurdle-and they shouldn’t be.

Put another way, the patent system is a contract between inventors and society. It only makes sense for the government to grant a time-limited monopoly in exchange for the added social value that a novel and useful invention brings when it comes to the marketplace. Along these lines, bona fide inventions certainly deserve patents. But Uncle Sam should leave it to the market to determine whose recipes are the most valuable.

Tropicana spokeswoman Kristine Nickel, not surprisingly, claims that Tropicana’s orange juice patent is “in the true spirit of what patents are for.” As she puts it, “For us it’s not about restricting the market. It’s about protecting the investment that we made in the research for these varieties of juice.”

But the fact is, Tropicana doesn’t even claim to have developed the orange varieties.

The people at Florida Citrus Mutual, a Lakeland-based grower trade association with nearly 12,000 members, are furious enough about the situation that they’re legally challenging Tropicana-one of their largest customers-to try to get the patent invalidated. As Andy LaVigne, Florida Citrus Mutual’s executive vice president, explains, the varieties used in Tropicana’s recipe were largely developed by funds from growers, and the advantages of blending juices have been well known in the Florida citrus industry for as long as anyone can remember. “There is nothing about the characteristics of the varieties or the blending of the juices that is new or novel; therefore the patent should be declared invalid,” LaVigne charges.

The patent office is due to rule on the case soon. Now, if it can just reestablish the difference between a recipe and an invention, I’ll be sure to raise my juice glass in tribute.