Last month, beloved fast-food restaurant KFC announced that they are unveiling a new product – edible coffee cups, which are set to make their debut in the U.K. this summer. This new innovation, dubbed the “Scoff-ee” cup, was the brainchild of KFC and British “food futurologists,” the Robin Collective. According to KFC’s press release, the cup is formed from a special cookie coated with a paper sugar, and lined with a layer of heat-resistant white chocolate. The white chocolate prevents the cookie from getting soggy and the cup from dissolving. As you sip and savor the coffee, the white chocolate lining slowly melts and adds flavor. Even better – these cups are not just delicious, but are also aromatic. The cups are infused with fragrances of coconut sunscreen, flowers, and freshly cut grass. KFC claims the scents are designed to "evoke the positive memories we associate with warm weather, sunshine and summer holidays."
While some critics are just thankful the cup is not made of chicken, others wonder if edible fried chicken buckets are soon to follow. However, all jokes aside, these cups may have a substantial impact on the food industry. In addition to tasting delicious, these cups could cut down on serious amounts of waste. The EPA estimates that Americans throw away a whopping 25 billion Styrofoam cups each year.
So, if the Scoff-ee cup is the success KFC is hoping for, the question remains of how they can best protect their innovation from competitors. Inventive chefs typically rely on either trade secret or patent law to protect their food and recipes. For the Scoffee-cup, trade secret law would not provide much protection because the law generally only protects against misappropriation of secret information needed to make the dish. See, e.g., Buffets, Inc. v. Klinke, 73 F.3d 965, 968 (9th Cir. 1996) (holding because recipes were basic dishes commonly known to others, trade secrecy protection could not be granted). Here, because the Scoff-ee cup is made of relatively simple ingredients – several of which KFC has announced publicly – trade secret law would not stop competitors from taking the idea after some slight tinkering in the kitchen.
Turning to patents, the considerations get a bit more complicated. The U.S. Patent Office has granted a robust number of patents on cookie inventions such as cookie dough that keeps well on the shelf (U.S. Patent No. 4,344,969), cookie dough that cooks in the toaster (U.S. Patent No. 6,093,437), and cookie dough guaranteed to keep a stable, chewy texture after baking (U.S. Patent No. 4,455,333). So what about the Scoff-ee cup?
Assuming that the patent drafter provides an appropriate written description of the invention, a patent examiner will turn to the three main requirements for a valid patent. First, §101 grants patent protection to any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101 (2013). Generally speaking, most food falls into the composition of matter category—that is, mixing together different ingredients to create a new combination. See, e.g., U.S. Patent No. 6,312,746 (patent for a mixture of ingredients in dog food); U.S. Patent No. 3117871 A (patent for mixing peanut butter and jelly for storage in the same container). As for useful, the examiner would likely find that, because the Scoff-ee cup can hold your coffee and provide you with a snack, it meets this requirement as well. Thus, the Scoff-ee cup survives the first hurdle of patent-eligible subject matter.
The second requirement demands that the Scoff-ee cup be novel, and not have been disclosed or available to the public for more than a year before the patent application is filed. To be novel, there must be no prior description of all elements of the Scoff-ee cup in any single reference. See 35 U.S.C. § 102. In fact, if KFC does not act within the next year, their own press release unveiling the Scoff-ee cup could burn them. Edible coffee cups are not a new concept, but KFC may still yet receive a patent because they added something extra to the cookie cup – the aromatic. From this blogger’s admittedly unsystematic Google searching, he could not find any reference to any cookie recipe that adds aromatics of grass, flowers, or sunscreen. Therefore, we can speculate that the Scoff-ee cup could potentially pass this second hurdle.
The last and highest hurdle to clear is that the recipe must be a non-obvious combination. See 35 U.S.C. § 103. Obviousness considerations are tough to knead out because they are often clouded by what legal scholars dub the hindsight bias – looking at the invention now after it has been made, of course it seems obvious to create it!
To determine obviousness, the court must consider if the average inventor trying to create an edible coffee cup, given the state of the coffee cup and cookie fields at the time of filing for the patent, would be able to derive the Scoff-ee cup from previously known ideas. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). These considerations become particularly tricky when the court tries to determine the identity of the average cookie coffee cup inventor – as she could range from an amateur home baker to a physicist with a Ph.D. specializing in heat transfer.
So for the Scoff-ee Cup’s obviousness, we must ask whether it adds anything new and non-obvious to edible coffee cups which were already known in the field? Certainly, adding aromatics like ginger or other spices to cookies is commonly known in the baking field. In addition, the chemicals that create the fragrance of flowers, grass, and sunscreen are well known, although using them as food additives may be an inventive idea. Also, as the Scoff-ee cup enters the market, secondary considerations, such as its commercial success and copying by competitors, could provide additional evidence of non-obviousness. See id. at 399. The question now becomes: would the average cookie cup designer looking at these prior references and other considerations find that the Scoff-ee cup is an obvious idea because of them? Well, I am not an expert in the cookie cup field, so I will leave you to draw your own conclusions. But the last thing I would think to add to my morning coffee is grass and sunscreen.
Overall, KFC may win patent protection for its Scoff-ee cup because it could survive the patent-eligible subject matter, novelty, and non-obviousness requirements. Obtaining a patent would allow KFC to expand the Scoff-ee cup’s distribution into the U.S. without the fear that competitors will appropriate their invention and steal away cookie-cup fans. Although lacking patent protection does not necessarily mean that the Scoff-ee cup is doomed to fail in American markets, it certainly could be a crummy ending.