Diets And Weight Loss Methods, Protectable By Intellectual Property?

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  1. Introduction and background

I was recently reading a tweet from Eleonora Rosita on Twitter that said: “From a student: ‘IP has become a real passion for me: isn’t it amazing to look around you, and to see that nearly everything is IP related?! ‘”.

So yes, the IP (“Intellectual Property”) is (almost) everywhere, I share and I completely subscribe to this observation. But I want to qualify it: IP is (almost) everywhere; but not just any old way. And not always as we think.

And precisely, to illustrate this point, I heard on the radio the other day a doctor, trying to praise the benefits of his weight loss diet, basically declare that:

  • what he advocates is not a diet, but a methodand even a scientific method based on the functioning of the human body ;
  • he had “discovered” this method, and that he was the first to have discovered it;
  • it was therefore his “invention”;
  • Given its success, it was copied by many competitors but it intended to defend its intellectual property.

All this left me very circumspect because I wondered what “intellectual property” he was talking about.

And it seems to me that this doctor is mistaken about the intellectual property he is thinking of. However, as I said above: intellectual property is (almost) everywhere; but not just any old way; and not always as we think.

Hence the idea of ​​this ticket to put the church back in the middle of the village.

  1. What is the method in question?

Before examining the potential protection by one or another intellectual property right that could be claimed by this doctor, we must first know what “method” we are talking about. In other words, it is first necessary to determine the object of the possible protection.

Broadly speaking (because there is no question here of advertising this method or giving dietary advice), the claimed method can be described as follows:

  • at breakfast: eat food category A in such quantity, associated with food category B in such quantity;
  • at noon: eat food category C in such quantity with food category B in such quantity; with a formal ban on eating food category D;
  • in the middle of the afternoon: eat only food category B in such quantity;
  • in the evening: if hunger is present, eat food category D with food category C (with a preference for food category C ‘rather than C ”);
  • Absolute exclusionfrom eating certain particular foods.

In short, a list of food recommendations and exclusions depending on the meal and the time of day.

  1. The discoveryvs. inventionand patent law

At first glance, in the mind of this doctor, there is already a terminological confusion: if he has “discovered” something, he cannot have “invented” it.

In fact, in intellectual property, a “discovery” is not an “invention”.

In patent law, in particular, the invention is eligible for protection; not the discovery.

I refer, in this regard, to Article 52 (2) (a) of the European Patent Convention, which provides that “are not considered as inventions within the meaning of paragraph 1 (i.e. patentable inventions) in   particular (…) discoveries (…)”.

Under Belgian law, Article XI.4 of the Code of Economic Law similarly excludes discoveries from the scope of patentability. We must therefore not confuse “discovery” and “invention”.

  1. Reich and V. Cashiers set out, in very clear terms, the difference between “discovery” and “invention”:

 “There is traditionally in patent law a summa division between invention and discovery. Discovery consists of seeing something already existing, but not yet known, which had hitherto escaped observation (for example, the ignored property of a matter or the unknown effects of a phenomenon) while the invention is to achieve something that did not exist. Hence the distinction between the scientist who observes and formulates an explanation and, possibly, a law and the inventor who takes advantage of this law to create an innovation. Only the invention is patentable, the simple observation of existing facts or the discovery of a product in nature is not” (Law of invention and know-how patents, Brussels, Lacier, 2010, p. 84, no.83).

Then, supposing that the said doctor meant that he made an invention (i.e. his diet method) from a scientific discovery (i.e. a particular aspect of the functioning of the human body), he would come up against another objection, namely the exclusion of methods from the scope of patentability.

Indeed, Article 52 (2) (c) of the European Patent Convention provides that are not patentable inventions “plans, principles and methods in the exercise of intellectual activities, in the field of games or in the field of economic activities, as well as computer programs”.

This doctor could also possibly be opposed by Article 53 (c) of the European Patent Convention which excludes therapeutic methods from the scope of patentability: “European patents are not granted for: (…) methods for surgical or therapeutic treatment of the human or animal body and diagnostic methods applied to the human or animal body, this provision not applying to products, in particular to substances or compositions, for the implementation of one of these methods”. Obviously assuming that a slimming method is a therapeutic method, but this could be defended when obesity is, unless I am mistaken, considered today as a disease or a pathological state.

In the light of the above, patent law seems a priori (I) inoperative with regard to a weight-loss method and (ii) incapable of protecting it.

  1. Whatabout copyright?

Could copyright be invoked by this doctor to protect his weight loss method?

To answer this question, we must first determine the object of copyright protection: what is copyright for and what does it protect?

Copyright protects literary and artistic works. This concept is widely understood: it is not only great literature or works of Fine Arts that are susceptible to copyright protection. Instructions for use and notices have already been considered as copyrightable. That says it all.

At this stage of the analysis, therefore, one could consider that if the weight-loss method of the doctor in question is a scientific work, it is susceptible of protection by copyright provided that it is original.

But the reasoning does not stop there. Indeed, it is still necessary to wonder if the disputed weight-loss method can really be qualified as a scientific work.

And to answer this question, we must define what a “work” is within the meaning of copyright. In this regard, reference is made to the TRIPS Agreements and the WIPO Copyright Treaty, both of which provide that a work supposes an expression and not a mere idea:

  •           TRIPS Agreement, Article 9.2. : “Copyright protection will extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such” ;
  • •        WIPO Copyright Treaty, Article 2: “Copyright protection extends to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such”.

In other words, copyright recognizes a fundamental distinction between simple ideas (not protectable) and expressions (protectable). This distinction is as fundamental as that existing in patent law between simple discoveries (not protectable) and inventions (protectable). We can draw a parallel between these two fundamental distinctions: the idea, like the discovery, does not suppose a creative or inventive contribution on the part of the creator or the inventor; while expression, like invention, implies such a creative or inventive contribution.

Thus, an idea, however great or creative it may be, is not a work within the meaning of copyright. For there to be work and therefore possibly protection, this idea must be expressed or shaped in a certain way (it is moreover in this formatting that we sought the creative input. of the author, that is to say the expression of the personal touch or the free and creative choices of this author, to know whether or not there is originality).

Based on the above, it seems to me that a weight loss method, like the one we are discussing today – consisting of a few steps, namely eating such food (s) in the morning, noon, afternoon and evening – does not constitute an expression but simply falls within the scope of ideas, procedures, methods of operation within the meaning of Article 9.2. Of the TRIPS Agreement and Article 2 of the WIPO car trademark logos .A parallel can indeed be drawn with:

  • Cooking recipes, which were ruled by the Liège Court of Appeal (judgment of June 10, 2011), as falling within the scope of simple ideas and being, for this reason, not protectable as such. According to the Liège Court of Appeal, only the concretization, the realization or the shaping of these recipes (such as, for example, their writing in a book or their concretization in a real dish, i.e. the finished product) would possibly be likely to copyright protection provided that this embodiment, realization or formatting is original;
  • the functionalities of a computer program (which I have already spoken about here): the functionalities of a computer program or of a software (i.e. the functions that must be performed or be able to be performed by this computer) are not , as such, protectable by copyright because such functionalities (even included in a certain order) are simply ideas and that, says the Court of Justice in its SAS Institute judgment (C-406/10) , we must avoid that simple ideas are monopolized; Conversely, the concrete formatting of these functionalities in or by lines of code is protectable by copyright (provided that these lines of code are original). I refer, in particular, to the example given by Advocate General Bot in his conclusions taken on the occasion of this SAS Institute case (paragraph 54), which makes it possible to clearly understand the distinction between ideas and formatting , and the reasons why protecting simple functionality should not be accepted:

“Let’s take a concrete example. When a programmer decides to develop an airline ticket reservation computer program, there will be a multitude of features in that software that are required for that reservation. Indeed, the computer program must, successively, be able to find the flight sought by the user, check the available seats, reserve the seat, record the user’s contact details, take into account the online payment data. And, finally, edit the electronic ticket of this user. All these functionalities, these actions, are dictated by a very precise and limited object. In this, they are therefore akin to an idea. Consequently, there may be computer programs offering the same functionalities”.

In other words, it is to avoid that a person can monopolize the concepts of “online ticket reservation”, “checking of available seats”, “seat reservation”, “registration of customer details”, etc. that the functionalities, taken alone or in combination, cannot, in an abstract way, be protected by copyright, but that only their concretization in lines of code is susceptible of protection (provided that these lines of code are original).

To summarize:

The simple recommendation to eat such food (s) for breakfast, lunch, 4 p.m. and dinner is akin to a simple idea or a simple list of ideas, not copyrightable by abstract way. A fortiori when this doctor himself admits that eating these very particular foods at such or such a meal is the best solution for the human body on the basis of various mechanisms of the human body that he has discovered. Indeed, by claiming such a scientific argument, the doctor recognizes that it is science which dictates this recommendation, which means that there is a scientific constraint on his dietary recommendation and that he has had no margin. Personal maneuver to establish this recommendation (which excludes any personal touch, any free and creative choice, any own or personal creation… and therefore de facto excludes protection by copyright).

The only thing this doctor could see protected by copyright is the concrete expression of this dietary recommendation, for example in a book or on his website.

But, in this case, this doctor could not oppose the resumption of his dietary recommendation “coated” differently, because he has no protection for his dietary recommendation as such. This doctor could only oppose the (almost) servile copying or plagiarism of his book / website or part of his book / website.

As I wrote about scientific works, if researcher A writes an article on subject X, researcher B can write another article on this same subject X, even taking up all the ideas, findings or experiences of researcher A, on condition that researcher B does not take the formatting of researcher A (i.e. the way in which researcher A has formulated or structured his article) and on condition that researcher B does not copy (parts of) the article of researcher A. The same goes mutatis mutandis for the list of dietary recommendations of the doctor in question…

  1. Conclusion

 By declaring that:

  • what he advocates is not a diet, but a methodand even a scientific method based on the functioning of the human body ;
  • he had “discovered” this method, and that he was the first to have discovered it;
  • it was therefore his “invention”;
  • given its success, it was copied by many competitors but it intended to defend its intellectual property;

It seems to me that this doctor has it all wrong and demonstrates an ignorance of intellectual property rights.

1 / Patent law will not allow him to protect his weight loss method consisting of a basic list of dietary recommendations such as “eat such food (s) at such meal” and “never eat such food (s) (s)”. At least three objections to the patentability of such a method could be raised. I have outlined them above.

2 / Copyright will only allow it to protect the formatting, expression or realization of this basic list of recommendations, whether in a book, on its website, or in any other form. But it would then only be the (almost) servile recovery or plagiarism of this book, this website…, or part of this book, website…, which would constitute an infringement. And not the resumption of this basic list of recommendations as such. In other words: a third party could use this list of recommendations, “wrap” it in another way, and not have any problems.

3 / this does not mean that no diet or diet can be protected by copyright. When I told people around me about this article, someone asked me about a famous points-based diet.

Without having conducted a comprehensive review in this regard, it seems to me that the situation could be different for this points-based regime. Indeed, the creator of this diet does not invoke a “beast” list of dietary recommendations depending on the meal, but has created a whole point-based system to tell you that you can eat as many points per day and that such. Food is worth X points, another Y points, etc.

There is therefore, for this diet, quite an extensive formatting.

Assuming that this formatting is not trivial (i.e. that it did not already exist before, that the creator of this regime was able to make free and creative choices; which – in parentheses – could possibly be contested, since the total points per person and the points per food are certainly dictated and modeled by a number of calories, and therefore by a scientific or technical constraint), it could be protected by the copyright, and whoever would take it back, to the identical, such a point system could be condemned for infringement.

On the other hand, the idea of ​​realizing a point system is not, in itself, protectable (remember the idea / formatting distinction), so that if a third party realizes another point system, “at his way ”, different from that of the famous diet, there would be, in my opinion, no problem.

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