Monday, September 12, 2011

The Extra Ingredient

One of the biggest challenges in the patentsphere is solving the problem of information discovery.  There's a lot of information out there, and the quality of the data is not always great.  There is a practice of playing information hide and seek to describe things as broadly as possible to cover ever possible permutation of the invention now and into the future.  And it's hard to tell where a lot of it comes from, the data provenance predicament. Then when you finally find the information you need, then what?  How do you know it's factual and trustworthy?  A healthy dose of skepticism and good discovery and analytics go a long way.  Take the case of the extra ingredient.

Inventors are supposed to teach a person ordinarily skilled in the art how to build or make their invention.  If you are one of those people, you should be able to take the spec and make the invention.  But sometimes inventors insert a little negative know-how into the works to throw off the honorable competition.  Edmund McIlhenny of New Iberia, Louisiana did exactly that in his patent for the "Improvement on Pepper-Sauce" US Patent 107,701.  That pepper sauce based on the Tabasco pepper, know to us as the beloved Tabasco Sauce.

Negative know-how is the trade secrets that define what doesn't work.  Negative know- how is hard to detect and when attempting to practice an invention that isn't coming out exactly right, dismissed as a lack of skill or simply not getting it exactly right.  The Pepper-Sauce invention is an early example of the value of a little negative know-how.

Jeffrey Rothfeder’s book, “McIlhenny’s Gold: How a Louisiana Family Built the Tabasco Empire,” investigated the history of the McIlhenny family and their business, one of the oldest privately held family-owned businesses in the US.  In his book Mr. Rothfeder describes how the company’s founder, Edmund McIlhenny, modified one of the ingredients of the recipe for Tabasco Sauce in his patent application to throw off the competition. Writing about the company’s patriarch and his patent application, Mr. Rothfeder notes,

“ A drop of bisulphate of lime is added to every ounce received from the press. The two mixtures thus prepared are now put together, and the whole compound worked through a fine flower sieve. The sauce is thus completely prepared and ready for use. 
“McIlhenny had two reasons for patenting his formula. First a patent would enable him to boast, particularly in period before there were regulators to police truth in advertising, that this product was one of a kind created by techniques so original they were even endorsed by the U.S. Government…his second reason for obtaining a patent somewhat obviated the first. McIlhenney wanted the patent to thwart would-be imitators. So, he applied for it with a recipe that wasn’t precisely the actual formula for making Tabasco sauce. In other words, the patent McIlhenny received…was based on a false recipe, just misleading enough to sabotage anyone who attempted to use the patent as a crib sheet to copy the product. …According to McIlhenny historian Shane Bernard, “There are no records of his purchasing bisulphate of lime”

The 1870 patent is short by today's standards.  A list of ingredients - Tabasco pepper, a handful of rock salt, fine vinegar, and a drop of bisulphate of lime.  A method of preparation, and two claims.     It took over 100 years for this information to be discovered.  Long after the patent expired.  

The message is retain your skepticism, examine patent data with a grain of rock salt, trust your judgement and look deeper when things seem a bit off and be on the look out for the drop of bisulphate designed to throw you off course.