Most people think patent laws are a good idea. In fact, most people view patent laws as a crucial part of a modern society.
Without patent laws, they say, there would be no incentive to produce anything new. We would be stuck with a handful of old ideas, and progress in all areas of creativity would quickly grind into a halt.
The argument is that patent laws are there to make sure invention is profitable. If someone spends months or years on something that will benefit others, then the inventor should also be entitled to benefit from it. The solution? Make laws that prohibit others from profiting from the invention without the original inventor’s permission.
Not everything is patentable, however. For something to be patentable, most countries’ patent law requires that it has to fulfill at least three criteria.
First, it must be novel. That is, at least some aspect of the invention must be new. Second, it must be non-obvious. It’s not enough that the invention is new, it also has to include something that someone couldn’t have just arrived by chance. Third, it must be useful.
Food recipes are patentable, as long as they fulfill the above criteria. For example, a pizza crust with an extra crunchy texture made with a novel cooking process could probably be patented.
Your Italian grandmother’s secret recipe for pasta sauce could not, however.
First, it’s likely that the recipe would not be new in the sense that patent law requires. There are endless recipes for pasta sauces out there already, and the probability that a similar recipe exists is very high. Second, the recipe would probably be obvious to a chef; if you showed him the recipe, it would not be something he could never have imagined cooking. Granted, he might not have actually cooked anything quite like it before, but that’s irrelevant (that’s how patent law sees it, anyway).
While the reasoning makes sense on the surface, this brings us to the argument of why patent laws exist in the first place. Is there truly such a big difference between the new kind of pizza crust and your grandmother’s traditional pasta sauce?
Both of them are a result of trial and error. Both of them require labour and creativity. Both of them are useful in their own way.
Let’s assume that your grandmother has spent three years on her recipe, trying different ingredients together, experimenting with cooking methods, making slight modifications until pasta sauce perfection is achieved. Although her neighbours might have their own pasta sauces, with many similarities, it is unlikely that any two recipes are exactly the same. The type and quality of the ingredients, the order of adding them, cooking time – all these will affect the final product, making them unique in at least some aspect.
Should she not be compensated for her efforts in the same way we compensate the inventor of the pizza crust? If we refuse to allow her to patent the new delicious pasta sauce, why would anyone come up with new pasta sauce recipes anymore? By not granting her the exclusive ability to profit from the recipe, are we not depriving the world of future pasta recipes? Those are the very arguments behind patent laws, after all.
The answer to all of these questions is no. Even without the ability to prevent others from profiting from your invention, inventions will still happen.
In the grandmother’s case, profit-seeking was probably not the motive for inventing the recipe in the first place. She probably just wanted to come up with a good pasta sauce. But since there are many family recipes that are intentionally kept secret, being able to patent them would make it much easier for people to protect the results of their creativity.
For a grandmother, the reward for coming up with the best pasta sauce in town may not be a monetary one. It could be a reputation as the finest cook in town. In many countries, people do take great pride in their special recipes, after all.
And yet, people come up with new, non-patentable recipes all the time. Some may be able to keep their recipes secret by refusing to share them with anyone, but this alone cannot explain why we don’t live in a world with a handful of different foods that nobody wants to improve upon. Food magazines are full of professional chefs sharing their recipes – some of which they serve at their restaurants for a high price.
If the premise behind patent laws – that without exclusive rights to profit from something – was correct, there should logically be few if any restaurants, food magazines, and online recipe databases. Yet, we have an abundance of them.
Indeed, we have an abundance of them because most recipes cannot be patented.
If all recipes were patentable, then either patents would be useless because everyone could modify the tiniest part of the recipe to get their own patent, or it would become impossible to come up with new recipes, because all new recipes would necessarily have to use components previously patented by someone else. You cannot make spaghetti bolognese without minced meat, and under an all-encompassing patent system, minced meat recipes would quickly be patented as well.
A patent system taken to its logical conclusion would lead to a world where there is one restaurant chain with the exclusive right to sell hamburgers. No one else could start up a competing hamburger restaurant, because it would violate the first chain’s patent on hamburger recipes. In fact, it’s doubtful whether there would be even a single hamburger chain, because someone else might have patented buns and hamburger patties before them!
Contrary to what some people think, the world continues to function not to the degree patent laws are enforced, but to the degree they are not. The reality is that the patent system is both arbitrary and, in most cases, counterproductive to innovation.
Innovation is the result of human creativity and the freedom to combine existing things in new ways, not patent laws. In the long run, government intervention can only make creativity worse – whether it’s pasta sauce recipes or something completely different.