0:01

Support for this show is brought to you by Vanta.

0:04

Managing the requirements for modern security

0:06

programs is increasingly challenging. Vanta gives

0:08

you one place to centralize and

0:10

scale your security program, quickly assess

0:12

risk, streamline security reviews, and automate

0:14

compliance for SOC 2, ISO 27001,

0:17

and more. Decoder

0:20

listeners get $1,000 off Vanta. Just

0:23

go to vanta.com/decoder to claim your

0:25

discount. That's

0:28

vanta.com/decoder. Right

0:35

now businesses are facing tough choices. Do

0:37

you cut costs or drive growth,

0:39

solve for today or build for

0:41

tomorrow? Do you satisfy

0:43

your shareholders or satisfy your customers?

0:46

The answer is yes. You

0:49

don't have to choose. With the intelligent

0:51

platform for digital business from ServiceNow, you

0:53

can say yes to unifying

0:56

your existing systems and

0:58

yes to accelerating growth. Visit

1:00

servicenow.com to see how we can help

1:02

you put yes to work. The

1:05

world works with ServiceNow. Hey

1:10

everybody, it's Neelai. I'm on vacation

1:12

this week, so the decoder team is taking a

1:14

short break. We'll be back next week with both

1:16

the interview and our new explainer episodes. We have

1:18

an incredible schedule coming up. I am very excited

1:20

to share all this with you. To

1:23

tide you over until Monday though, we

1:25

have a bonus episode from our friends

1:27

at Vox Media and Eater's Gastropod about

1:29

an incredible patent battle in the world

1:31

of pizza. I'm serious, one

1:33

of the biggest fights in the pizza

1:35

industry took place in court in the

1:38

90s, an intellectual property dispute about stuffed

1:40

crust pizza. This is so very

1:42

decoder. I love it the most. As you'll hear

1:44

host Cynthia Graber and Nicholas Willi describe it, stuffed

1:46

crust pizza is a

1:48

multi-million dollar idea, most notably for Pizza Hut, which

1:50

launched it in 1995 with a

1:53

commercial featuring none other than Donald Trump. But

1:55

did Pizza Hut steal this idea? And what

1:57

does it even mean to own a pizza

1:59

hut? the idea for stuffed crust pizza.

2:02

At the heart of this dispute is

2:04

cheese maker named Anthony Manjello who spent

2:06

years obtaining a patent for stuffed crust

2:08

pizza. Manjello, whose nickname is The

2:11

Big Cheese, was convinced he was the first

2:13

person to do it and he pitched the

2:15

big pizza chains like Pizza Hut. So

2:17

when Pizza Hut rolled out stuffed crust pizza

2:20

years later, Manjello wasn't happy and he took

2:22

the company to court for a billion dollars.

2:25

That's a great story and in this episode Cynthia and

2:27

Nicola do an excellent job of breaking down an illegal

2:29

framework under which ideas can be protected under

2:31

US law. From copyright to trademark to trade

2:33

dress and patents. So much of what we

2:35

talk about in the decoder comes down to

2:38

IP lawsuits like copyright lawsuits or patent lawsuits

2:40

and how judges decide those cases and

2:43

where the law ends up can sear

2:45

the course of history and that's true

2:47

whether we're talking about lines of code,

2:49

music distribution, AI or yes even

2:52

stuffed crust pizza. All right here's

2:54

Gastropod can you patent a pizza? Here we

2:56

go. All

2:59

right so my name is Anthony and

3:01

my last name is Manjello aka The

3:03

Big Cheese because I've been in the

3:05

cheese business for 32 years of my

3:07

adult life but the truth is

3:10

I am and always will

3:12

be the creator and

3:14

originator of stuffed crust pizza. Listen

3:17

kids stuffed crust pizza may seem

3:20

like it's always been around but I

3:22

am old enough to remember a world

3:24

without it. A world before

3:26

the stuffed crust pizza was invented

3:29

and inventing food that's what we're all about

3:31

this episode. We of course are Gastropod the

3:33

podcast that looks at food through the

3:35

lens of science and history. I'm Cynthia

3:37

Graber and I'm Nicola Twilly and this

3:39

episode we've got the shocking true story

3:41

of how Pizza Hut stole the stuffed

3:44

crust idea from the guy who invented

3:46

it. Or did they? Because

3:48

wait can you actually own the idea

3:50

of something like stuffed crust pizza? And

3:53

like if you say you invented it as Anthony

3:55

claims how can you prove it? If you're a

3:57

scientist who comes up are

4:00

laws to allow you and only you to

4:02

make it. If you're a singer who writes

4:04

a new song, there are laws to make

4:06

sure no one else can release that song

4:08

without your permission. But if you're

4:10

a chef or even just a humble home

4:12

cook who comes up with the next great

4:14

thing in food, what do you do?

4:16

We've got the stories of Stuffed Crust Pizza, Fudgy

4:19

the Whale, KFC's Secret Recipe, and more to

4:21

help get to the bottom of this. This

4:24

episode was funded in part by the

4:26

Sloan Foundation for the Public Understanding of

4:28

Science, Technology, and Economics, and by our

4:30

fantastic supporters, thanks to you all. Gastropod

4:32

is part of the Vox Media Podcast

4:34

Network in partnership with Eater. Speaking of

4:37

Eater, you love them and we love

4:39

them for their restaurant recommendations, but you

4:41

should know that they're just as passionate

4:43

about dining in as they are about

4:45

dining out. That's why we're

4:47

excited to dive into the relaunch of

4:49

their Eater at Home section. It

4:52

features a mix of new and

4:54

existing columns, deeply reported stories, and

4:56

brand new video series all focused

4:58

on cooking, feasting, and celebrating from

5:00

home. Think expert hacks

5:02

and how-tos, kitchen upgrade advice,

5:05

and entertaining etiquette. It

5:07

all kicks off with a guide to throwing

5:09

the ultimate fondue party, and who doesn't

5:11

want an excuse to melt some cheese? Find

5:14

more at eater.com. Anthony

5:20

Mangiello comes from a multi-generational

5:23

cheese family. My grandfather came

5:25

from Italy in the early 1900s.

5:29

While he was in Italy, he

5:31

was a tinsmith. So when

5:33

he came to the US, he brought his trade

5:35

with him, and he

5:37

made what we called metal

5:39

ricotta cans. Anthony's granddad's ricotta

5:42

cans had special holes for the way

5:44

to drain out of, which was super

5:46

nifty, but Italian cheese makers

5:48

still had to mold their mozzarella

5:50

by hand until Anthony's dad came

5:52

to the rescue. So my dad

5:54

is actually noted in the history

5:56

books for creating the very first

5:59

automated... molding machine for

6:01

the Italian cheese industry. Anthony was

6:03

surrounded by both cheese and by

6:05

cheese innovations. So it's no surprise that

6:07

when he was only 18 years old

6:09

he was already following in the family

6:11

footsteps. It all began when his friend's

6:13

mom asked him to make pizza. So

6:15

I said sure of course I can. So

6:18

I brought home some cheese from work to the

6:21

house and I stopped at a bakery

6:23

and I bought the dough balls

6:25

from the bakery. And then Anthony kind of

6:27

made a mistake. He thought the balls of

6:29

dough looked small so he stuck two of

6:31

them together and then he stretched out the

6:33

crust. He knew how thin the pizza itself

6:35

underneath the sauce and cheese should be. So

6:38

I pushed all the excess dough to

6:40

the crust. So if you could envision

6:42

a cooked crust I had

6:44

a raw crust as big as a

6:47

cooked crust. So I put the sauce,

6:49

I put the cheese, I thought everything

6:51

was fine. Listeners it was not fine.

6:53

And as I'm looking through the glass

6:55

door of the oven I

6:57

can see the pizza cooking. And

7:00

then the dough that I had in

7:02

the crust area started to grow and

7:04

grow and grow. I couldn't believe how

7:06

big it was growing. It was like

7:08

a giant wing of a zeppli or

7:11

a calzone around the crust of the

7:13

pizza. I was embarrassed now. I says

7:15

oh my gosh what did I do?

7:18

Well I took it out of the oven

7:20

and needless to say this big crust made

7:22

the pie look very funny. They all ate it of

7:24

course. The part with the sauce and the cheese

7:27

with standard pizza. But then everyone got to that

7:29

huge ring of puffy crust around the edges

7:31

of the pizza where all that extra dough had

7:33

gone. And you bite it and it sort of

7:35

collapses when you bite it and then it opens.

7:38

And I was like wow if there was

7:40

something inside here that would be great.

7:42

And that is truly how

7:44

stuffed crust pizza was born. And

7:46

the angel sang. But I

7:48

mean really had no one stuffed

7:51

a crust before? There were so many

7:53

people that said Anthony

7:55

this is too simple. Anthony I'm sure

7:57

somebody's already created this. I have

7:59

never seen any. anything like it. I never knew

8:01

of any crust that was ever stuffed

8:03

before in my lifetime. Anthony even did

8:05

some research and he didn't find any

8:07

example of anyone stuffing pizza crust. So he

8:10

told his dad, the cheese molding machine inventor,

8:12

he said, Dad, I have what I think

8:14

is an amazing new idea. When I

8:16

told him about stuffed crust pizza, he

8:19

was really impressed and he told me you

8:21

have to protect it the best you can.

8:24

So how exactly does one protect this

8:26

stroke of genius like the stuffed crust

8:28

pizza? Well, there are in fact legal

8:30

tools to protect inventions and innovation and there

8:33

have been these types of protections for a long

8:35

time. The earliest evidence

8:37

we have for something like a copyright or

8:39

patent system comes from a Greek,

8:42

I think you could call him a

8:44

gossip columnist, a guy named Athanas. This

8:47

is Chris Briggman. He's a professor of

8:49

law at NYU and he writes a

8:51

lot about what lawyers call intellectual property

8:53

or IP, which is the thing you're

8:55

trying to protect with a copyright or

8:58

patent system such as the

9:00

one described by our ancient

9:02

Greek gossip columnist, Athanas. And

9:04

he was writing about the Greek

9:06

city state of Sybaris, which is in Italy,

9:08

in Calabria, but it was a Greek city

9:10

state at the time. And

9:12

he says, you know, these people were so

9:15

addicted to luxury that what they really wanted

9:17

was new dishes all the time because they

9:19

had such jaded palates. And so if

9:21

someone came up with a new recipe,

9:23

they would prepare it for a jury.

9:25

And if the jury liked it, they

9:27

would award them a one year exclusive

9:29

right to make the recipe within the

9:31

city walls. And you

9:33

know, Athanas was like, can you believe these softies, you

9:35

know, these luxury lovers? So

9:38

that's a very early intellectual property

9:40

system, if Athanas can be believed.

9:42

Chris says Athanas' writings might not

9:44

be true, but it is still a

9:46

good story. In any case, aside from those luxury

9:49

lovers, most people who wrote things like books

9:51

or recipes didn't really worry about how to

9:53

protect their creative output until the 1400s because

9:56

it was unlikely anyone would steal what they'd written

9:58

and then a new technology appeared

10:00

on the scene. So we never

10:02

really thought about it too much until the printing

10:04

press got invented in about 1450

10:07

AD and suddenly it

10:10

was reasonably cheap to copy. So in

10:12

the years before the printing press, copying

10:15

was expensive, you had to copy things by

10:17

hand. There was no real economic advantage to

10:19

copying. But suddenly you could

10:21

take a book and you could run

10:23

off a thousand copies relatively inexpensively. People

10:26

started thinking after that about whether

10:28

that was going to prevent authors

10:31

from engaging in new creative labor, making

10:33

new books. The concern was, well, maybe

10:36

authors wouldn't bother because it'd be too

10:38

easy to rip them off. So

10:41

why create in the first place? Interestingly, at about the

10:43

same time, there was a burst

10:45

of creativity in what's now Italy in

10:47

places like Venice and Florence. It was

10:49

the start of the Italian Renaissance with

10:52

people like Leonardo da Vinci and

10:54

Michel Angelo coming up with all sorts

10:56

of groovy new inventions. And local rulers

10:58

granted them exclusive rights to those inventions

11:01

for a number of years. It was

11:03

basically the intellectual dawn of the patent

11:05

system, which continued to develop and

11:07

was increasingly formalized in Britain as the

11:10

agricultural and industrial revolutions got going.

11:12

And then the first modern copyright laws

11:14

protecting authors, they emerged in England in

11:16

the early 1700s. And

11:19

then the idea of protecting intellectual property was

11:21

adopted by the new leaders of the United

11:23

States just a few years after the Constitution

11:25

was written. One of the first things

11:27

the new government did was enact the Copyright Act of

11:29

1790. And

11:32

our founders decided that in

11:34

order to encourage and reward creativity

11:37

and innovation, they would provide

11:39

certain protections that

11:41

would reward innovation, creativity

11:44

for a certain period of time

11:46

and then allow those innovations and

11:48

creativity to go into the public

11:51

domain so that other people could

11:53

benefit from them as well. Valerie Flugge is

11:55

an assistant professor of business law at

11:57

California State University Northridge, she's

11:59

a written about food and IP law. Anthony

12:02

wanted to benefit from the protections laid

12:04

out by our founding fathers. But it

12:06

turns out there are a bunch of

12:08

different ways to protect IP. So there

12:10

are basically five different types of intellectual

12:12

property that can be used to protect

12:14

not only food, but any kind of

12:16

innovation or creativity. They're not

12:19

all five available. It depends on the

12:21

circumstances. We've mentioned a couple of these

12:23

already. There's copyright, then there's patents. There

12:25

are two different types of patents. There

12:27

are utility patents and design patents.

12:29

And then there are two we haven't

12:32

mentioned yet. They're trade secrets, which is

12:34

like Coke secret formula. That's still a

12:36

secret today. And trademarks. The name Coca-Cola

12:38

is trademarked. So which from this mortgage

12:41

board of IP protections should Anthony

12:43

pick to make sure he reaps the

12:45

maximum benefit from his stuff cross invention?

12:48

Now Anthony came up with a new

12:50

recipe. Maybe he should copyright it, just like

12:52

Athania said that people were doing in ancient

12:54

Greece. So copyright, the idea,

12:56

is that we're going to give

12:59

authors and artists

13:01

some period of exclusivity during

13:04

which they can use the law to

13:06

prevent others from copying their work. And

13:09

this will give them enough time to make

13:11

back the money they've invested

13:13

in creating in the first place. And this

13:15

will prevent copies from

13:17

depressing incentives to create. Lots

13:20

of creative things can be protected by

13:22

copyright. This episode of Gastropod is copyrighted.

13:24

So is Taylor Swift's new song. So

13:26

is Disney's latest movie. Copyright is a

13:28

really important form of protection. It's super strong, and

13:30

it lasts for at least 70 years after

13:33

the creator's death. Things stay pretty

13:35

locked up. For instance, nobody could do

13:37

anything at all with Mickey Mouse without

13:39

Disney's permission until literally this year, 2024,

13:43

when the copyright protection ended. So there's

13:45

a long-term protection if you can get

13:47

copyright. The problem when it

13:49

comes to recipe and food design is

13:52

that neither one really qualifies and

13:54

meets what is necessary to

13:57

get copyright protection. That's because copyright

13:59

is designed. to protect creative

14:01

expression. To qualify your creative

14:04

expression, whatever it is, it has

14:06

to be original and it has to

14:08

be fixed in something that lawyers call

14:10

a tangible medium, something more or less

14:12

permanent. And the courts have held with

14:14

respect to recipes that

14:16

recipes are not creative expression.

14:19

Recipes are really facts, a

14:22

method and a procedure. So

14:25

copyright doesn't cover facts and

14:28

copyright also doesn't cover ideas

14:31

or methods or processes. These

14:33

are outside the scope of

14:35

copyright. So if you think of

14:37

recipes at their essence, they're

14:40

facts and processes.

14:42

It's an instruction, right, for taking a

14:44

bunch of stuff, flour,

14:47

water, yeast, a bit of salt,

14:49

right? These are the facts of what's in bread.

14:52

And then running them through a bunch of

14:54

processes, you know, mixing them,

14:56

needing them, shaping them,

14:58

baking them, that's at its

15:00

core what a recipe is and none of that

15:02

stuff can be protected by copyright. This seems

15:04

kind of bananas. I mean, I think of coming

15:07

up with a new recipe as super

15:09

creative. And I am not alone.

15:11

Lots of recipe creators agree with me

15:13

and have tried their case, but Chris

15:15

says no dice. They have a

15:17

moral argument. They don't have a great legal

15:20

argument. The law is firm on this one.

15:22

Copyright doesn't cover facts and it doesn't

15:24

cover processes. And judges have said multiple

15:26

times that's what recipes are. It's just

15:28

outside the domain of copyright. There is one

15:31

way that recipe writers can get a copyright

15:33

and that's if they have stuff around the

15:35

recipe that isn't the actual recipe itself. So

15:37

if you use artwork or you have some

15:40

creative commentary along with your

15:42

recipes or you

15:44

arrange them in a particularly creative

15:47

order, you may get copyright protection

15:49

to the extent of that. So, you know,

15:51

Nigella Lawson writes a book and there are

15:53

recipes in the book, but there's also all

15:55

kinds of stuff about her, her life, her

15:57

wardrobe, you know, her house. And

16:00

that stuff, that kind of descriptive

16:02

stuff that isn't really at the core

16:04

of the recipe but is more about

16:06

expressing some other thing, that's of course

16:09

copyrightable. The recipe isn't. OK, so

16:11

even if I disagree with the legal philosophy

16:13

here, the long and short is that Anthony

16:15

is not going to be able to copyright

16:18

the recipe for his pizza invention. But

16:20

what about protecting it as a trade

16:22

secret, his secret method for stuffing a

16:24

crust? That seems like it could make

16:27

sense. Trade secrets protect information that

16:29

a business keeps credit and

16:31

has some potential economic value.

16:34

And the business develops it, takes

16:36

reasonable steps to keep it secret and if

16:38

they do that, the business

16:40

owner is protected to a certain extent from

16:43

other people being able to access that

16:45

information. The weird thing about

16:47

trade secrets is it's not something you

16:49

apply for, like copyright or a patent.

16:51

And in fact applying for it would cancel

16:54

the protection because you would have to tell

16:56

the US government what it was you were

16:58

protecting and if those records became available to

17:00

other people they'd disclose the information. In our

17:03

Coca-Cola episode, we described all the things

17:05

the company does to keep their secret formula a

17:07

secret, like keep it in a vault and only

17:09

a couple of people know it at a time.

17:12

And in fact Coke stopped selling their

17:14

soda in India in the 1970s because

17:16

the Indian government required foreign companies to

17:18

share all their trade secrets with the government

17:20

in order to do business there. And

17:22

Coke wouldn't share because if they

17:24

told their secret to the Indian

17:26

government, then people everywhere else, including

17:29

in the US, could argue that

17:31

it wasn't really a secret anymore

17:33

and Coke would lose their trade

17:35

secret protection everywhere. Even

17:37

though India is one of the biggest markets

17:39

in the world, Coke didn't go back on

17:41

sale there until the 1990s, after

17:43

a new government changed the rules. Coke

17:45

of course isn't the only company that's

17:48

taken extraordinary means to protect what they

17:50

market as the secrets of their success.

17:52

So as some examples, Kentucky

17:54

Fried Chicken, the way that

17:56

they make their coating on their chicken is

17:58

protected by trade secrets. They've

18:06

created whatever it is they've created, they've

18:08

kept it confidential, they've kept it away

18:10

from the public, and so

18:12

that is protected for them. Basically what

18:14

happens when you have trade secret protection

18:16

is if someone tries to take your

18:18

secret to a competitor, you can sue.

18:21

And if you can prove that you did your best

18:23

to keep it a secret, you'll likely win. But

18:26

if the judge decides you didn't

18:28

keep it a secret, you can

18:30

lose trade secret protection. McDonald's used

18:32

to have trade secret protection for

18:35

its Big Mac sauce, but

18:37

that was arguably lost a few years

18:39

back when one of their chefs did

18:41

a video telling people how they could

18:43

make the secret sauce at home. This happened in 2012.

18:46

McDonald's at the time was trying

18:48

to be more transparent about what

18:50

was in their food. For years

18:53

that special sauce was a big

18:55

secret guarded closely inside McDonald's headquarters

18:57

in Oakbrook, Illinois. That is

18:59

until now. We're going to

19:01

make a version of the Big Mac with

19:03

ingredients that are similar that you could buy

19:06

at your local grocery store. In

19:08

a video posted on YouTube, McDonald's executive chef

19:10

Dan Coudreau takes to the kitchen and finally

19:13

reveals the makings of one of the fast

19:15

food industry's best kept secrets.

19:17

What this means is that McDonald's can

19:20

no longer sue if BK decides to

19:22

serve a burger with special sauce. Even

19:24

before the video came out and McDonald's

19:26

lost its trade secret protection, Burger

19:28

King could have decided to make that special

19:31

sauce if they really wanted to. They just

19:33

have to buy a McDonald's burger with special

19:35

sauce and try to reverse engineer it.

19:37

Trade secrets do not protect somebody from

19:40

somebody buying their food product, their

19:42

recipe. Many of

19:44

your listeners are really good at

19:47

tasting something and trying to figure out what's

19:49

inside it. So if

19:51

somebody buys a Coke, tastes it

19:53

and says, I

19:55

think I know what's in this and in what

19:58

proportion and makes it on their own. they

20:01

can do that. This loophole is a

20:03

bit of a deal-breaker for the big cheese.

20:06

After all, once you've seen a stuffed

20:08

crust pizza, you can probably figure out

20:10

how to make it. So actually trying

20:12

to protect stuffed crust pizza as a

20:14

trade secret wouldn't offer much protection at

20:16

all. Another problem for Anthony is that

20:18

he wasn't running a pizza empire and

20:20

he didn't want to, but for stuffed crust to become

20:22

a reality, he would have to tell someone else how

20:25

to make it. Trade secret really couldn't be the way

20:27

for him to go. Which of the

20:29

other three IP options would protect his

20:31

invention? We'll find out after the break.

20:35

Support for the show comes from the

20:38

Harvard Business Review, the leading destination for

20:40

smart management thinkers. You're a

20:42

business leader, which means you have to deal

20:44

with several different issues week after week. Look,

20:46

it can be tough being the one calling

20:49

the shots, but the Harvard Business Review can

20:51

be a good place to help lighten the

20:53

load on your shoulders. There's a lot of

20:55

great stuff you can find at hbr.org, but

20:58

for just $10 a month, you can get

21:00

access to unlimited content including insider newsletters, case

21:02

studies, and the HBR mobile app. I had

21:04

a chance to check out hbr.org and

21:06

let me tell you, the articles and

21:09

case studies are very enlightening. Plus, you'll

21:11

find podcasts, case studies, videos, newsletters, so

21:13

much more. While much of Harvard Business

21:16

Review's content is available for free, after

21:18

signing up at their site, subscriptions to

21:20

unlimited content start at only $10 a

21:23

month. Go to hbr.org/subscriptions and enter

21:25

promo code decoder right now to

21:27

take advantage of this great offer.

21:30

Again, go to hbr.org slash

21:32

subscriptions, enter promo code

21:35

decoder to learn more about

21:37

this great opportunity to help manage your

21:39

career and business. Support

21:41

for this podcast comes from him. It

21:44

can be challenging for men to speak about

21:46

their health. And whether that's a fear of

21:48

being vulnerable or just one indicating things private,

21:50

there are just some things we would just

21:52

rather keep to ourselves. Hymns knows

21:54

how you feel, which is why they're looking to

21:56

provide you the help you need to screly. Hymns

21:59

is a men's healthcare brand looking

22:01

to provide simple and convenient access

22:03

to science-backed treatments for men. The

22:05

entire process is 100% online, so

22:08

you can get a new routine of improving

22:10

your overall health in private. If prescribed, your

22:12

medication ships directly to you for free and

22:14

in discreet packaging. No waiting rooms and no

22:16

pharmacy visits. So while it can be tough

22:19

to deal with this part of your life,

22:21

it doesn't mean you have to do it

22:23

alone. Start your

22:25

free online visit today at

22:27

hymns.com/decoder. That's

22:30

hims.com/decoder for your

22:32

personalized treatment options.

22:35

hymns.com slash decoder.

22:38

Prescriptions require an online consultation with a

22:40

healthcare provider who will determine if appropriate.

22:43

Prescriptions apply. See hymns.com/decoder for

22:46

details and important safety information.

22:48

Subscription required. Price varies based on product

22:51

and subscription plan. Support

22:53

for decoder comes from Shopify. Some

22:56

people might say cat memes built the internet,

22:58

but it's e-commerce that keeps the lights on.

23:00

If you've dreamt of building a business, Shopify

23:02

can be a great place to start. Shopify

23:05

is the global commerce platform that helps you sell

23:07

at every stage of your business. It

23:09

doesn't matter if you're a well-established global brand

23:12

or selling handcrafted goods out of your home

23:14

workshop. Shopify has the tools to help

23:16

you go further. Like their

23:18

AI-powered tool Shopify Magic or their

23:20

built-in marketing tools that can help

23:23

you create, execute, and analyze campaigns.

23:25

You can sell wherever, too, online

23:27

or with their in-person point of

23:29

sale system. Millions of entrepreneurs of

23:31

every size across 175 countries

23:34

rely on Shopify for their

23:36

e-commerce needs because businesses that

23:38

grow grow with Shopify. Sign

23:41

up for a $1 per

23:43

month trial period at shopify.com/decoder.

23:46

All lowercase. Go to

23:48

shopify.com/decoder now to grow your business

23:51

no matter what stage you're in.

23:54

shopify.com/decoder. are

24:00

a bust, but what about IP

24:02

protection option number three? What

24:04

about trademark and its subcategory, trade dress?

24:07

Trademark and trade dress are for something

24:09

that is uniquely associated with your product.

24:11

Trademarks are for the product name, like

24:13

say Campbell's Soup or Baked Lays, and

24:16

trade dress is the signature way a

24:18

food looks, like if your cheese cracker is in

24:20

the shape of a goldfish. The question would

24:22

be, when you see that

24:24

orange fish cracker, do you

24:26

think to yourself, oh, this is an

24:28

orange fish cracker, or do

24:30

you think, is this a Peppridge Farm

24:33

Goldfish cracker? So

24:36

if you think this is a Peppridge Farm

24:38

Goldfish cracker, then

24:41

you're thinking about the manufacturer of the product,

24:43

and the trademark protection is

24:46

so that somebody else can't come out

24:48

and produce a similar

24:51

looking cracker that may not have

24:53

the same quality, or maybe playing

24:55

off of your good will. And

24:58

let's say you eat one of those other crackers, and

25:00

you say, oh, this is terrible.

25:03

I will never eat a Peppridge Farm

25:05

Goldfish cracker again, when it

25:07

wasn't a Peppridge Farm Goldfish cracker to begin

25:10

with. Companies have challenged Peppridge Farm on their

25:12

trade dress. In the 90s, Nabisco

25:14

decided to make a cheesy cracker mix

25:16

connected to a Nickelodeon kids cartoon

25:18

called Cat Dog. One fine day

25:20

was a wolf and a pear, a baby was born in the

25:22

car, a mother knows me,

25:24

I'm Rob, I'm just a me, I'm just a

25:26

little cat dog, Cat Dog, Cat

25:29

Dog, little

25:31

dog, little cat dog. The character

25:33

in the cartoon was half cat and half dog,

25:35

and so Nabisco made a cracker mix that had

25:37

three shapes. One was half cat, half dog, another

25:39

was a bone, and a third was a fish.

25:42

And Peppridge Farm was not having

25:44

any of it. They took Nabisco

25:46

to court, and they argued that

25:48

consumers might eat this Nickelodeon inspired

25:50

snack mix with its fish shaped

25:53

crackers, and be confused because people

25:55

clearly believe that all cheesy fish

25:57

crackers are Peppridge Farm crackers. Now,

26:00

Okay, so if enough consumers are confused, and

26:02

what the threshold is has always been a

26:04

bit of a mystery, but some courts would

26:06

say 15% is enough, okay? So

26:11

15% of consumers of these kinds

26:13

of snacks are confused, then that's

26:15

a trademark violation. The senior user

26:17

of that shape essentially

26:19

gets to bar other companies from using

26:21

something like it, not just fish, but

26:24

whales, or maybe even rockets. So

26:27

I gotta express some skepticism, and that

26:29

is that trademark law, as it's evolved

26:31

in the United States, basically

26:33

thinks of consumers as morons in a

26:35

hurry. And whether

26:38

that's actually what consumers are,

26:40

how they act, is

26:42

largely unexplored, but

26:45

some of the things that are found

26:47

to be trademark infringements, you would think

26:49

if anyone's paying any attention whatsoever, this

26:52

would not be confusing. But anyway,

26:55

I'm reporting, you decide, I guess. Chris

26:57

may think that other companies should be

26:59

able to make vaguely fish-shaped crackers, and

27:01

that consumers are smart enough to know

27:03

the difference, but Pepperidge Farm won the

27:06

case. And lots of companies have trademarks

27:08

that allow them to protect their names

27:10

and designs. Magnolia Cupcake's Frosting Swirl, Hershey's

27:12

Kisses, that unmistakable shape, and one of

27:14

my childhood favorite ice cream cakes, Carvel's

27:16

Fudgy the Whale. Fudgy the

27:18

Whale is back. That's a whale of a

27:20

cake for whale men and... Bingo! I

27:23

would assume that a stuffed grass

27:25

pizza is surely as iconic as

27:27

Fudgy the Whale or a fish-shaped

27:29

cracker, but Valerie said not so

27:31

fast. The legal concept is when

27:34

it comes to a product design, you

27:37

can't get trademark protection until it's acquired something

27:39

that's called secondary meaning. Secondary meaning is when

27:41

the thing is so famous that it's associated

27:44

with your company. Like if you see the

27:46

red and white design of a can, you

27:48

know it's Campbell's. Same with goldfish, those

27:50

are Pepperidge Farms. But stuffed crust, nobody

27:52

would look at that and think

27:55

that's the big cheese themselves because nobody knew what

27:57

stuffed crust pizza even was. It wasn't

27:59

a thing. yet and you can't get

28:01

trade dress protection until your product is a

28:03

thing. And there's another problem Anthony would face.

28:06

If he wanted to get trade dress protection,

28:08

the thing he would want protection for would

28:10

have to be purely ornamental. It couldn't be

28:12

functional at all. This limitation came up when

28:15

the Japanese company Pocky tried to sue

28:17

another company that made a similar looking

28:19

coated cookie treat. The court in the Pocky

28:21

case, and this is the Third Circuit Court

28:23

of Appeals in Philadelphia, the judge is a

28:26

guy named Stephanos Bebas. He wrote

28:28

an incredibly thoughtful opinion, I thought,

28:30

about whether Pocky could be protected

28:32

by basically trade

28:34

dress. And he said,

28:37

well, this can't be

28:39

because it functions. It all

28:42

functions. So how does it function? If

28:44

you haven't had a Pocky, it's

28:46

just a long skinny cylindrical cookie

28:48

stick with a coating over, say,

28:50

four-fifths of it. And Judge Bebas

28:52

said, well, the shape of

28:54

the Pocky, it has this handle, and

28:56

the handle is there so you can eat the Pocky

28:58

without getting chocolate in your hands. D.

29:00

Nied. And the same thing happened to

29:02

Dippin Dots, which are these weird little

29:04

multicolored ice cream balls that neither Cynthia

29:07

nor I have ever tried. They apparently

29:09

had a bit of a moment in

29:11

the 90s in mall food courts and

29:13

places like that. And Dippin

29:15

Dots brought a case against a rival

29:17

called Minnie Melts who had started making

29:20

a copycat little ice cream ball snack.

29:22

And it was denied because they found

29:24

that those small beads were

29:27

necessary to make the product creamy. So

29:29

again, it was functional. It was a

29:31

way to make a creamier product. It

29:34

wasn't just an ornamental look. Judges

29:36

don't grant trademark protection easily because

29:39

if you get a trademark, then nobody else

29:41

can ever make something that looks like your

29:43

trademark thing. As long as you're using it

29:45

to indicate the source of products, that right

29:47

can last at least notionally until the end

29:49

of time. And so to

29:52

withdraw a functional thing from

29:54

common use and to give a monopoly in

29:56

it to one company forever and ever and

29:58

ever is a serious thing to do.

30:00

I mean imagine if only one

30:02

company could make a chocolate coated cookie

30:05

stick or a tiny ice cream ball

30:07

for the rest of eternity. Or if

30:09

Anthony was the only person who would ever

30:11

be able to stuff the crust of a

30:13

pizza. Humanity as a whole would lose.

30:16

So all we have left on our list of

30:18

IP protections is patents. That's it. Now

30:20

Anthony had designed a new pizza crust. Maybe

30:23

a design patent would do the trick.

30:25

So design patents don't protect the way

30:27

things work. They protect the way an

30:29

article of manufacture looks, the ornamental appearance.

30:31

And you could apply design patents for example to

30:33

the shape of a breakfast cereal. Basically if

30:35

you've made a breakfast cereal that has a

30:38

new and original look or design you can

30:40

apply to the US government and get a

30:42

design patent and no one else can make

30:44

a breakfast cereal that looks like your product

30:46

for 15 years. So let's say we have

30:48

a particular shape for breakfast cereal. It's just

30:51

ornamental. It's not meant to do something like

30:53

hold the milk better or

30:55

you know feel better in your mouth.

30:57

It doesn't have a useful

30:59

feature. It's really just you know decorative.

31:02

That can be covered by a design patent. You

31:04

might be thinking what up lawyers?

31:06

Isn't that the same thing as

31:08

trade dress? But Valerie told us

31:10

that though they are similar they

31:12

are also slightly different in ways

31:14

that companies often take sneaky advantage

31:17

of. Remember you can't get trade

31:19

dress protection till your product is

31:21

recognizable as your unique product by

31:23

consumers till it has secondary meaning. Well if

31:25

you get a design patent first then you

31:27

get 15 years of exclusivity to

31:29

build up your rep in the marketplace. And

31:31

then when the design patent expires you're

31:33

more likely to qualify for trade dress

31:36

protection. Valerie told us that plenty of

31:38

foods have been protected by design patents.

31:40

Lots and lots of craft pasta products.

31:43

So I don't know if you ate

31:45

these growing up but I certainly did. You

31:48

would get craft mac and cheese that the pasta would

31:50

be shaped like a dinosaur, a map

31:53

of the United States, more

31:55

recently I think because of Harry Potter a

31:57

magic wand and all of those are

32:00

protected by a design patent. Anthony's new

32:02

pizza would look a little different from regular

32:04

pizza because its crust would be so huge.

32:06

But there's a problem. A product can't

32:08

get a design patent if the function

32:10

of the new invention causes the design.

32:12

A stuffed crust pizza only looks the way

32:15

it does because there's stuff in the crust

32:17

that makes the crust bigger. The function causes

32:19

the design so we couldn't get a design

32:22

patent. Which only leaves one option for our

32:24

hero, a utility patent. And

32:27

the criteria for a utility patent are

32:29

strict. First of all, it's got to be useful.

32:31

Secondly, it has to be what

32:33

they call novel, which means

32:35

it's got to be new. It can't

32:38

be something that's already been out there. And

32:40

then in addition to that, it has to be what

32:43

they call non-obvious. So

32:45

it has to be something that would, if

32:47

somebody's in your same situation, wouldn't

32:49

say, oh, that's really clear, that's

32:51

easy. That doesn't take a lot of thought to get

32:54

to that next step. Valerie told us that despite these

32:56

strict criteria, there are quite a few foods that

32:58

have utility patents that were able to prove to

33:00

the US Patent Office that the food, or maybe

33:03

the technique to make it, was novel and useful.

33:05

There's microwavable sponge cake and an

33:07

instant stuffing mix, and probably my

33:09

favorite, spaghetti-os. Putting saucy pasta in

33:11

a can was a real step forward

33:14

for children everywhere. The neat brown spaghetti

33:16

you can eat with a spoon. Uh-oh.

33:19

Uh-oh. Uh-oh.

33:21

Spaghetti-os. And the real problem

33:23

was, if you cooked

33:26

the spaghetti first and then

33:28

put it in the sauce in the can, it

33:30

would get very mushy. So Campbell's

33:32

came up with a way of actually putting

33:34

essentially raw spaghetti in the can along with

33:36

sauce. And they came up with a way

33:38

of both cooking and agitating the can so

33:40

that the spaghetti cooked in the can.

33:43

So this is a pretty famous patent

33:45

back in the mid-20s, long ago expired.

33:47

But that wasn't terribly silly. If you

33:49

like spaghetti in a can, this was

33:51

a slightly better spaghetti in a can.

33:53

As an Italian-American, I find this horrible

33:56

to contemplate, but nonetheless, there you have it.

33:59

Like Chris says. SpaghettiOs may not be

34:01

the most authentic pasta dish, at

34:03

least according to anyone of Italian

34:05

heritage, but the patent itself?

34:08

That was legit. Not

34:10

so much for another iconic food that

34:13

Smuckers tried to patent, the PB&J. For

34:15

the name like Smuckers, it has to

34:17

be good. And for

34:19

moms in a hurry, Smuckers makes

34:21

uncrustable PB&J sandwiches. Smucker

34:24

starts with delicious PB&J, takes off

34:26

the crust, and seals in all

34:29

the goodness of homemade. So

34:31

they claim that their food item was

34:33

an innovative way to make

34:35

a PB&J sandwich, which

34:38

involved putting the PB

34:40

on the bread and then putting the jelly

34:43

in between the PB, and then

34:45

crimping the bread. And this way

34:47

the jelly wouldn't leak out, and

34:50

it wouldn't get the bread

34:52

soggy, because the PB would prevent it

34:54

from spreading to the bread. But the

34:56

patent office did some research themselves, and

34:58

they said, nope, Smuckers, you didn't invent

35:00

anything new. There were articles on how

35:02

to make a good PB&J sandwich that

35:04

said, if you don't want the jelly to leak,

35:06

or if you don't want it to go and make

35:08

the bread soggy, put the PB

35:10

on first and put the jelly in the

35:13

middle. So this was

35:15

a product that the patent office found

35:17

was not novel, and it

35:19

was not non-obvious. So this

35:21

was what Anthony had to prove to the

35:23

US Patent Office, that his invention of

35:26

stuffed crust pizza was new and

35:28

non-obvious and useful. Would it

35:30

work? Would stuffed crust pizza be

35:32

seen as spaghettios or uncrustables? That

35:34

decision after the break. Support

35:38

for this show comes from Indeed. Imagine

35:41

the perfect employee, the color

35:43

Jackie. Jackie is

35:45

professional yet relaxed. Actual, friendly,

35:48

meets deadlines, and just makes

35:50

your job easier overall. But the

35:52

search for Jackie can be long and tedious,

35:55

especially when you have so many other things on

35:57

your plate. Indeed wants to help you find

35:59

your own. next Jackie. Indeed

36:01

is your matching and hiring platform with over

36:03

350 million global monthly visitors

36:06

according to Indeed data and a

36:08

matching engine that helps you find

36:10

quality candidates fast. They

36:12

leverage over 140 million qualifications

36:15

and preferences every day so

36:18

their matching engine is constantly learning

36:20

from your preferences. That means they

36:22

can better connect you with your

36:24

Jackie and listeners of this show can

36:26

get a $75 sponsored job credit to get your jobs

36:30

more visibility at indeed.com/podcast.

36:32

Just go to indeed.com/podcast right

36:34

now and say you heard about

36:36

Indeed on this podcast. indeed.com/podcast.

36:41

Terms and conditions apply. Need to

36:43

hire? You need Indeed. Can a

36:48

vehicle be two things at once? Remarkably

36:50

luxurious and relentlessly capable?

36:52

Can it be all electric but agile off-grid?

36:55

It can now. Introducing Kia's

36:58

first three-row all-electric SUV,

37:00

the 2024 Kia

37:02

EV9 with a sleek

37:04

silhouette that reveals a spacious three-row cabin

37:06

with available mood lighting that elevates yours

37:09

with a pulse-pounding 0-60 speed that

37:11

thrills you one minute and available reclining lounge

37:13

seats that unwind you the next. With

37:16

a cabin so quiet you can almost hear

37:18

a jaw drop. With all

37:20

the premium comfort you crave and the

37:22

off-road capability you desire. With

37:24

a striking design that makes your heart stop

37:27

and race at the same time. It's

37:29

the most beautiful contradiction you've ever seen

37:32

and it's everything you've ever wanted

37:34

in one amazing electric SUV. The

37:36

all-new all-electric three-row Kia EV9. Electric

37:38

like you've never seen. The 2024

37:40

Kia EV9 is available now. Inventory

37:45

limited. Check with dealer for availability

37:47

and visit kia.com/EV9 for more

37:49

details. Support

37:55

for this show comes from Fiverr,

37:57

the world's largest marketplace for freelance

37:59

services. In the fast-paced

38:01

world of business, every decision comes. And when

38:03

it comes to hiring, there's no room for

38:06

guesswork. That's why Fiverr

38:08

has developed solutions for businesses to

38:10

make outsourcing projects simple, quick, and

38:12

compliant. You can gain access to

38:15

curated talent through Fiverr Pro's catalog

38:17

of top freelancers, organized by skill

38:20

and experience. Streamline your projects

38:22

with a user-friendly dashboard, where you can

38:24

track progress and collaborate with your team.

38:26

And for anyone needing the highest level

38:28

of white glove service, Fiverr Pro's

38:31

project partners can manage multiple

38:33

freelancer engagements for you. Project

38:35

partners will outline requirements, assemble a

38:38

roster of freelancers, and manage a

38:40

schedule to ensure your deliverables are

38:42

completed on time. Ready to scale

38:44

smarter? Visit pro.fiverr.com to sign up

38:47

and use code FOX for 15%

38:49

off any service. Visit

38:53

pro.fiverr.com and use

38:56

code FOX. So

39:01

at the time, I was working

39:03

construction in Manhattan, and

39:05

I was running a big job. Anthony may have been working

39:07

construction, but his mind was still focused

39:09

on stuffed crust pizza. He knew that, as

39:11

we said, he had to prove to the

39:13

patent office that his invention was new and

39:15

non-obvious and useful. And so he started to

39:17

go through the checklist. Would it be useful?

39:20

I would go walking around the construction

39:22

floor after they had their lunch,

39:25

and I'd see pizza boxes, and I would

39:27

open them. What did I see? Or

39:30

six crusts just sitting there? Ah,

39:33

okay. If you stuffed this crust,

39:36

people will not throw it away. They're

39:38

gonna eat it. There's the

39:41

beneficial aspect of it. Done clearly

39:43

a useful invention. For

39:45

the other criteria, that it was new

39:47

and non-obvious, Anthony hit the books. As

39:50

far as he could see, no one

39:52

had done this before. So

39:54

far so good, he put together the application.

39:56

I did it. It took me

39:58

over three years to achieve my purpose. patent. The

40:01

examiner in the patent trademark office

40:03

was having a hard time conceptually

40:06

understanding what this product

40:08

was. He told my attorney that,

40:10

oh, I can't get a patent

40:12

because it sort of infringes in

40:14

an Apple turnover or a ravioli.

40:17

And I had to fly my attorney

40:19

to the patent trademark

40:21

office for him to sit down

40:23

face to face with the examiner

40:26

to explain to him this all

40:28

is about a pizza. And

40:31

after he came back, I was awarded

40:33

my patent in 1987, patent number 4661361.

40:38

Amazing. But that

40:40

still wasn't enough for Anthony. He wanted to make extra

40:43

sure that he had solid protection on all

40:45

sides. So he went ahead and applied for a

40:47

trademark to protect the name of his pizza

40:49

too. So common sense, I called

40:51

it stuffed crust pizza. But

40:53

when I applied for the trademark, the trademark

40:56

office says, look, that's too

40:58

descriptive of a sentence and

41:01

you cannot trademark something

41:03

that describes something. So I

41:05

changed it to stuffing the

41:07

crust with a hyphen after

41:09

the end and a dash.

41:12

And lo and behold, I got my

41:14

trademark stuffing the crust. And then

41:16

with all that IP protection locked

41:18

down, Anthony started cold calling the

41:21

big dogs, dominoes, little Caesars, and

41:23

of course Pizza Hut. And

41:25

the only people that entertain the thought

41:27

of talking with me and wanting to

41:30

see my concept, guess who that was?

41:32

Pizza Hut. The company wanted more information. They

41:34

asked him to send his designs. This was the

41:37

only open door I had. So I stuck my

41:39

foot in it and I sent them

41:41

the patent. I sent them the trademark. I

41:43

sent them the process. I sent them everything

41:45

and they sent me back a letter saying

41:47

thank you, but we are not interested

41:49

in this product. Anthony was understandably

41:51

a bit discouraged at this point, but

41:54

he didn't give up. A few years

41:56

later, he tried again and this time

41:58

Pizza Hut suggested he should send his

42:00

patent and the process description to their

42:02

R&D department. So he did,

42:05

but then they still said they weren't interested. So

42:08

in 1991, I started my business,

42:10

my Fromaggio cheese business. And

42:13

then in 1994, I have sitting on my

42:15

desk and I get a phone call from

42:17

a friend of mine. And

42:19

he says to me, Anthony, congratulations. I says,

42:22

what do you think gradually before? He

42:24

said, you sold your pizza. I did a

42:26

pizza hut. I said, I

42:28

don't understand what you're talking about. He says, Anthony, look

42:31

in the newspaper. So I go and

42:33

get the newspaper and it was the centerfold of the newspaper.

42:36

And it said, Pizza Hut is

42:38

launching in 1995 a $45 million

42:40

advertising campaign for their new

42:47

product they call stuffed crust

42:49

pizza. What's better than a cheesy bite?

42:52

Cheese in every bite. That's when we

42:54

invented stuffed crust pizza. Tied and stuffed

42:56

with almost a pound of cheese. That's

42:59

only one original. The original stuffed crust

43:01

pizza from Pizza Hut. You know what

43:03

that pizza is, a hut? I nearly

43:06

fell off my chair. I

43:08

couldn't believe it. Pizza Hut said their brand new

43:10

creation was the brainchild of a woman in their

43:12

R&D department. She said she was inspired by a

43:15

guy in a focus group who said he'd feed

43:17

his crusts to his dog. The

43:19

stuffed crust pizza was an instant sensation.

43:21

I remember my brother begging my mom

43:23

to take us to Pizza Hut so

43:25

we could try it. And clearly we

43:28

were not alone because it sold like

43:30

hot cakes, hot cheesesteaf

43:32

cakes. The statistics that I looked

43:34

up, in 1994, Pizza Hut

43:36

had 8,200 outlets. They

43:43

were doing $4.6 billion in sales. In

43:51

1995, after the launch of

43:53

stuffed crust pizza, their sales grew

43:55

to 5.2. billion

44:00

dollars. Now here

44:03

we are in 2024,

44:05

three of the largest

44:07

pizza companies in the

44:09

world and that's going

44:11

to be Pizza Hut, Little Caesars

44:13

and Papa John's. All

44:15

three of them are making

44:18

stuffed crust pizza. Never mind all

44:21

the different varieties you're going to

44:23

find of brands in the supermarket.

44:26

It's a multi-billion

44:28

dollar concept. But

44:30

back in 1995 Anthony had no

44:33

idea how big a deal this new pizza was

44:35

going to be. He just knew something was wrong.

44:37

He had the patent for stuffed crust pizza.

44:39

After he nearly fell off his chair, Anthony

44:42

picked up the phone. He called Pizza Hut,

44:44

told them who he was and he

44:46

was immediately passed along up the

44:48

chain. Third person answers the phone.

44:51

I says to the gentleman, Hi, my name

44:53

is Anthony Mongello and he says we know

44:55

who you are. And

44:58

there was silence. He

45:00

says to me, we'll offer

45:02

you $50,000 for your

45:05

patent and your trademark.

45:07

Anthony briefly considered it, but instead again

45:09

he thought, no, I have the patent. You

45:11

Pizza Hut, you're infringing and I want both

45:13

recognition and a piece of the pie. He

45:16

reached out to his lawyer and his lawyer said he had

45:18

a case. But he needed evidence to prove

45:20

that Pizza Hut was infringing on his patent.

45:23

He needed to figure out whether they were

45:25

making their stuffed crust the same way he

45:27

specified in his patent. I used to

45:29

go to the stores and buy stuffed

45:31

crust pizza. And my brother would stand

45:33

there with a video camera trying to

45:35

film the people in the back so

45:38

we could try and see how

45:40

they were making this. But my

45:42

brother would be there with a camera. I'd order

45:44

the stuffed crust pizza. I had a razor

45:47

knife in my pocket. As

45:50

soon as they handed me the pie, I would

45:52

run to a table or a countertop and

45:54

I take the razor out and I would cut the

45:56

thing open. And I looked from inside

45:58

and I could see the string cheese

46:00

and I could see the spaces in

46:02

between the string cheese of just a

46:05

dough." Which was exactly the

46:07

method Anthony had specified in his

46:09

patent. Time to see Pizza

46:11

Hut in court. Anthony thought it'd be quick,

46:13

but the case dragged on. There was plenty of evidence

46:15

given on both sides. Pizza Hut's argument was that

46:18

they invented it in-house and that they were making it

46:20

a different way than it was in his patent. Anthony

46:23

obviously argued the opposite, that they were doing just

46:25

what was in his patent. The case was tried

46:27

by a judge, as patent cases usually are, rather

46:29

than by a jury, and in the

46:31

end the judge ruled against Anthony.

46:34

He based his decision on two things. One,

46:37

he said that Pizza Hut hadn't

46:39

infringed the method because Anthony had described

46:41

crimping the edges of his pizza innovation

46:44

to create individual slices, and Pizza Hut

46:46

didn't do that. Anthony

46:48

says that's not the point. They basically used

46:50

the same method. The way they put these

46:52

cheese sticks on the

46:55

dough base, separate, individual food

46:57

portions, equally spaced is

46:59

exactly what they did. They

47:02

copied my patent verbatim. But the judge

47:04

had another comment when he ruled against

47:06

Anthony. He said that the patent was

47:08

not valid because there had been prior

47:10

publication of a similar technique in a

47:12

Women's Day magazine cookbook called Encyclopedia

47:15

of Cookery. Basically, the judge

47:17

invalidated the patent. That can

47:19

happen. The judge can say, nah,

47:21

the U.S. Patent Office should not have granted

47:23

that patent in the first place. The

47:27

difference being is that when it goes

47:29

to trial, the judge is hearing

47:31

more evidence than the Patent Office

47:33

examiner does when they decide whether

47:35

or not to deny or grant the

47:37

patent. And that sounds to me

47:39

roughly like a good result. Because

47:42

stuffed crust pizzas as a genus, I

47:44

think that's probably too broad to be

47:46

owned. Sorry, Anthony. This

47:48

is not on Team Big G's. Anthony

47:50

didn't appeal, but of course he has

47:52

always and always will consider this something

47:54

he contributed to the world of culinary

47:56

delights. But

48:00

the truth is I am and always

48:03

will be the creator and

48:06

originator of stuffed crust pizza.

48:09

And I have a United States patent issued to me

48:11

in 1987 to prove it. Now

48:15

Pizza Hut never invented this. They never

48:17

got a patent. No one could ever

48:19

get a patent because I have

48:21

one. In other words, Anthony feels like, sure

48:23

Pizza Hut may have made the stuffed

48:25

crust into a hit but you can't

48:27

take the glory away from him and

48:30

he's still innovating in cheese products

48:32

today. Every product I make

48:35

is a manjello original creation.

48:38

We were the first company to marinate

48:40

a little selling genie ball and put it in

48:42

a cup with all the herbs and spices that

48:44

a consumer can go grab and go and pick

48:46

up. We were the first to make

48:49

a brusuto and mozzarella roll with

48:51

the meat wrapped around the outside

48:53

of the cheese. I

48:55

am an artist and my cheese is my canvas.

48:58

Anthony says he was the first to create these

49:00

types of snacks and the big thing he took

49:02

away from his past experience is that he also

49:04

has to be the first one to sell them.

49:07

So what I've learned from that and I'd like

49:09

to teach everyone is if you have a concept,

49:11

first of all, run to market

49:13

as soon as you can. So

49:15

in my world and in my business, all

49:18

I do is I'm there first. This

49:20

tactic is called first mover advantage in

49:23

the business world. And it's one of

49:25

a range of ways that people who

49:27

invent something but can't protect it very

49:29

well under the existing IP laws can

49:31

still reap the benefit of their inventions.

49:33

Chris studies the world of inventions that

49:36

aren't necessarily protected by IP and the

49:38

fields that it applies to. Things like

49:40

fashion, tattoo art, and yes, food. If

49:42

you want to know how IP works, one

49:45

way of doing that is looking at places where there's

49:47

lots of creativity but there's not a lot of IP

49:50

and then try to explain, well, how does that work? What

49:52

difference does it make that IP is at least

49:55

partially absent? new

50:00

inventions using IP law, being first

50:02

to market is popular strategy. Take

50:05

the case of a surprisingly

50:07

viral pastry sensation, the cronut.

50:09

One of the hottest things in New York City

50:11

right now is a pastry called the cronut. It's

50:13

so popular the inventor is now

50:16

fighting other bakers who want to copy

50:18

the cronut. So the cronut's an

50:20

interesting example of an early

50:23

mover, an innovator, who

50:25

had a period of exclusivity before others

50:27

figured out how to produce the cronut

50:29

well, right, and reliably. Dominique Ansel is

50:32

a famous baker in New York and

50:34

in 2013 he started selling a hybrid croissant

50:36

and donut that he brilliantly called the cronut.

50:38

It was an immediate hit so much so

50:40

that people were lined up outside the door

50:42

within days and he trademarked the name just

50:44

a week later. When Tony Tang

50:47

of Tony's Donut House in Los

50:49

Angeles started making his version of

50:51

the cronut, he was promptly served

50:53

a cease-and-desist letter for using the

50:55

trademarked cronut name. I'm reading this

50:57

letter and I'm like loving him

50:59

and I'm hating him and

51:01

I'm loving him and I'm hating him but

51:04

then when it was all done I still loved him. He's

51:06

a man. Tony's

51:08

pastry is now the cravenut. Other

51:10

bakeries around the country are going

51:13

with the descent. Other aspiring cronut

51:15

bakers came up with copycat croons

51:17

and cronets. It was a phenomenon

51:20

and even though Dominique Ansel didn't

51:22

have a patent and couldn't stop

51:24

others from making the same pastry,

51:27

he still benefited from getting there

51:29

first and trademarking the name. During

51:31

that period there was a ton of

51:34

news coverage people associated the cronut with

51:36

that innovator and that of course burnishes

51:38

the innovator's reputation so the

51:40

fact that you know that notable inventions

51:42

associated with you provide some returns and

51:45

in some instances that may be enough. That's

51:47

one method to profit off an invention without

51:49

having a lot of legal protection. Chris says

51:51

there's another way people can reap those rewards.

51:53

It's what he calls attribution. Attribution is

51:56

particularly common in the world of high-end

51:58

cuisine with chefs at FANS restaurants.

52:00

So chefs may cook someone else's

52:02

recipes sometimes with some modifications and

52:04

they'll say you know inspired by

52:06

right on the menu this this

52:08

comes from a place and

52:11

sometimes when chefs fail to do that

52:13

you know there's complaining there's not lawsuits

52:16

but there's complaining within the community and

52:18

that complaining within the community may be

52:20

enough over time to encourage

52:24

people to provide that kind of attribution

52:26

which builds the reputation of the chef

52:28

that originated the recipe that reputation contributes

52:31

to the success of the chef's

52:33

restaurant. It's a complex ecosystem it's

52:35

not simple like IP but it's

52:37

effective. The other thing Chris has

52:39

noticed is that sometimes the lack

52:42

of IP protections it doesn't reduce

52:44

creativity but it does change what

52:46

form that creativity takes. He

52:49

gives the example of bartenders you

52:51

can't patent or copyright a new cocktail

52:53

recipe but if it takes

52:55

some flair to make it then it's

52:57

harder for other people to copy so

52:59

the lack of IP law favors cocktail

53:01

innovation that requires some performance art too.

53:04

Same applies in restaurants. So a restaurant

53:07

with great service with beautiful decor great

53:09

ambiance that is a performance

53:11

that's a performance of the food and

53:13

that performance is also very difficult often

53:16

to copy right high quality great ambiance

53:18

in a restaurant is something that isn't

53:20

cheap to just replicate. So again

53:22

it's like you know that the

53:24

lack of IP protections either formally like in

53:27

recipes or really de facto on the street

53:29

like in music after an abster this

53:32

contributes to the encouragement

53:34

of some forms of consumption and the

53:36

discouragement of other forms of consumption the

53:39

encouragement of some forms of creativity and the

53:41

discouragement of other forms of creativity. Like today

53:43

musicians make most of their music from tours

53:45

not from selling albums because it's so easy

53:48

to stream and even to pirate music but

53:50

you can't copy the experience of a live

53:52

show. So you know again it's like the

53:54

world changes but it changes in

53:56

complex and interesting ways that might be good might

53:58

be bad we could debate. hate that, but

54:01

it's very interesting. Neither Chris

54:03

nor Valerie thinks our IP system is

54:05

perfect. One issue is that these types of

54:07

legal protections mostly help out people and companies

54:09

with deep pockets, because they're the ones who

54:11

can afford to sue for any kind of

54:13

infringement, and they have the resources to keep

54:15

a lawsuit going. There's a cynical saying that's

54:17

often credited to Thomas Edison, who ended

54:19

up with more than a thousand patents.

54:22

A patent is merely a title to

54:24

a lawsuit. And it's kind

54:26

of true. Like we saw in the tale

54:28

of Anthony Mongello and the stuffed crust pizza,

54:31

a patent doesn't do anything unless you have

54:33

the money to take advantage of that period

54:35

of exclusivity and the cash to hire lawyers

54:37

to defend it in court. Rarely do you

54:40

see the little guy coming out on top.

54:42

Which is too bad, because at the end of the day,

54:44

the point of these protections isn't to increase the number

54:47

of cases that lawyers can argue or

54:49

to ensure that only rich companies are

54:51

protected. In theory, it's really to make

54:53

sure that the people who are inventing things

54:55

can benefit from that invention and so will

54:57

want to keep inventing. But there's an important

54:59

nuance in there. The point of IP is

55:02

not just about what's fair for the individual

55:04

inventor, it's about what's good for society as

55:06

a whole. The logic is to give

55:08

people enough of an incentive that

55:11

they will create, not to give

55:13

people complete property rights forever and

55:15

ever and ever over the creation.

55:17

Chris says that in the end, whether you

55:19

can patent a pizza or not, that's not

55:21

the right question. What matters most

55:24

is, are we getting enough creativity in

55:26

the realm of pizza or food in

55:28

general? Are there new dishes and new

55:30

recipes? And there are. If

55:32

recipes are under produced, so if the freedom

55:34

to copy recipes means that we don't get

55:37

a lot of recipes, then maybe

55:39

we should be worried. I

55:41

think the fact is we get a lot of recipes.

55:43

We get a ton of culinary creativity. And

55:45

this, I think, proceeds from something we

55:48

really haven't referred to, which is cuisine

55:50

is a much more open art

55:53

form, one in which there's a lot

55:55

more sharing of information, one in which

55:57

also builds on very deeply,

55:59

rooted traditions, culinary

56:01

traditions, that reinvents

56:03

these traditions, that reworks them. And

56:07

you know, this is a way, this

56:09

is an environment in which creativity can

56:11

also happen without much intervention

56:13

from intellectual property. To be

56:15

fair, all creativity builds on

56:17

other creativity. Artists look at

56:20

other art, writers read other writing,

56:22

podcasters listen to other podcasts. Perhaps

56:25

it's even more so in something like

56:27

food, which is so central to our

56:30

survival and our identity and our daily

56:32

enjoyment. The patent examiner pointed out that

56:34

raviolis and apple turnovers already

56:36

existed. So did empanadas and

56:38

calzones, their stuffed crusts all around us.

56:41

So maybe stuffed crust pizza was just

56:43

waiting to happen. Thanks

56:47

so much to Chris Brigman, Valerie Flughi

56:49

and Anthony Montiello. We have links to

56:51

their research and their food innovations at

56:53

gastropod.com. Plus, we have a link

56:55

to a new short movie that tells the

56:57

story of Anthony's case from his perspective. It's

56:59

called Stolen Dough. And of course, thanks to

57:01

our amazing producer, Claudia Geib. We'll be back

57:04

in two weeks with a brand new episode.