Why the Chicken McNugget Is a Great Argument Against Strong Patent Laws

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How the unpatented research of a brilliant food sciences professor may have helped make the fast-food icon possible.

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(Reuters)

Earlier this week, Fred Turner, the influential former McDonald's CEO who helped turn his company into the globally loved, burger-flipping colossus it is today, died at the age of 80. We can thank Turner for such fast food icons as the Egg McMuffin, the drive-through window, and the Happy Meal. But for those of us who happen to care about patent law, there's one part of his legacy that's particularly fascinating: the Chicken McNugget.

Until fairly recently, it was conventional wisdom that McDonald's had invented the entire devilishly addictive concept of the chicken nugget in the late 1970's as American diners began cutting down on the red meat — and hence, hamburgers — in their diets and started turning to poultry. But a few weeks back, Maryn McKenna published a wonderful piece of corrective history in Slate that traced the origin of the spongy fried chicken chunks back to the work of Cornell food sciences professor Robert Baker. Baker was brilliant researcher devoted to expanding the then-paltry market for chicken and egg products, engineering technically advanced recipes for hot dogs, canned hash, frozen meatloaf, and other gustatory marvels in his university lab. In the early 1960s, he perfected a process for boneless fried "chicken sticks." Here's McKenna's description: 

Baker's prototype nugget, developed with student Joseph Marshall, mastered two food-engineering challenges: keeping ground meat together without putting a skin around it, and keeping batter attached to the meat despite the shrinkage caused by freezing and the explosive heat of frying. They solved the first problem by grinding raw chicken with salt and vinegar to draw out moisture, and then adding a binder of powdered milk and pulverized grains. They solved the second by shaping the sticks, freezing them, coating them in an eggy batter and cornflake crumbs, and then freezing them a second time to -10 degrees. With trial and error, the sticks stayed intact. Baker, Marshall, and three other colleagues came up with an attractive box, designed a dummy label, and made enough of the sticks to sell them for 26 weeks in five local supermarkets. In the first 6 weeks, they sold 200 boxes per week.

Were Baker working today, you could be sure that he would have had a patent application submitted well before the first box was shipped. But the professor never really attempted to cash in on his discoveries. Instead, he published his research in regular bulletins that he then sent out to hundreds of companies around the country. As McKenna notes, Baker also moonlighted as a corporate consultant, and his grad students students spread his know-how as they landed jobs throughout the food industry. 

The idea for chicken nugget seems to have re-emerged independently at McDonald's, after Executive Chef Rene Arend decided to chop up and batter fry some chicken breasts in the company's test kitchen. But when the chain approached a pair of food production companies to help them mass produce the treats, it's possible (though not absolutely confirmable) that they were using some of the techniques Baker pioneered. And since he never patented his process, the professor never saw a cent, even as McDonald's earned millions after introducing the McNugget nationally in 1983.

Here's what makes the story particularly interesting from an IP perspective: It's good fodder for an argument whether you're for strong patent laws or against them. Even though he had the resources of an Ivy League university behind him, Baker is the pretty much the prototypical small-time innovator whose work made money for everyone who touched it, except himself. It's the sort of nightmare scenario that the pro-patent lobby loves to trot out in response to the idea that we should loosen IP protections. 

On the flip side, the entire McNugget origin story is also an illustration of the ways innovation can thrive in a world of weak patent rights. As an academic equally devoted to chicken and to science, Baker was happy to pursue his research without the promise of a payday, allowing his methods to feed a collective pool of industry knowledge. Meanwhile, ordinary market pressure forced McDonald's to go searching for an innovative poultry product. And while the company is notoriously aggressive about protecting its IP (it's even applied to patent sandwich making), it's safe to assume that a lack of patent protection wouldn't have kept them from bringing the McNugget to market,* lest one of its competitors have outwinged them on the chicken craze. If copycats were a concern, they could have hidden the details of their precise process, much the way KFC treats Colonel Sanders's original recipe as a closely guarded state secret. 

Ultimately, though, the market was capable of providing incentives at every level without the promise of a government-granted monopoly on the right to fry up extruded meat. 

Given a choice between making sure everyone reaps the maximum profit from their work, and ensuring that good ideas become useful, free public knowledge, I'd take the latter. Obviously, there are some products — pharmaceuticals being the classic example — where the R&D costs are so high, and the ease of copying so low, that nobody in their right mind would invest in their creation without some IP protection. But that's certainly not the case for every valuable product. You can taste the evidence for yourself. 

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*Baker's Wikipedia page suggests that McDonald's did patent the McNugget in 1979, but the article unfortunately doesn't cite a source. The only independent confirmation I've found for that fact so far is this graduate thesis from Cal State University. Neither the McNugget nor its production process appears to show up in Google Patent Search. I've called McDonald's to verify the recipe is protected IP, and will update the story if I get a response. If it's not actually patented, though, I think that just goes to further prove my point. 

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Jordan Weissmann is a senior associate editor at The Atlantic.

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