This is a transcript of the Gastropod episode Can You Patent A Pizza?, first released on March 5, 2024. It is provided as a courtesy and may contain errors.

ANTHONY MONGIELLO: All right, so my name is Anthony and my last name is Mongiello. AKA the Big Cheese. Because I’ve been in the cheese business for 32 years of my adult life. But the truth is, I am and always will be, the creator and originator of stuffed crust pizza.

NICOLA TWILLEY: Listen kids, stuffed crust pizza may seem like it’s always been around, but I am old enough to remember a world without it. A world before the stuffed crust pizza was invented.

CYNTHIA GRABER: And inventing food, that’s what we’re all about this episode. We of course are Gastropod, the podcast that looks at food through the lens of science and history, I’m Cynthia Graber—

TWILLEY: And I’m Nicola Twilley, and this episode, we’ve got the shocking true story of how Pizza Hut stole the stuffed crust idea from the guy who invented it—or did they?

GRABER: Because wait—can you actually own the idea of something like stuffed crust pizza? And like, if you say you invented it, as Anthony claims, how can you prove it?

TWILLEY: If you are a scientist who comes up with a new drug, there are laws to allow you and only you to make it. If you’re a singer who writes a new song, there are laws to make sure no one else can release that song without your permission. But if you’re a chef or even just a humble home cook who comes up with the next great thing in food—what do you do?

GRABER: We’ve got the stories of stuffed crust pizza, Fudgie the whale, KFC’s secret recipe, and more to help get to the bottom of this. This episode was funded in part by the Sloan Foundation for the public understanding of science, technology, and economics, and by our fantastic supporters. Thanks to you all! Gastropod is part of the Vox Media Podcast Network, in partnership with Eater.

TWILLEY: Speaking of Eater, you love them and we love them for their restaurant recommendations, but you should know that they’re just as passionate about dining in as they are about dining out. That’s why we’re excited to dive into the relaunch of their Eater at Home section. It features a mix of new and existing columns, deeply reported stories, and brand new video series all focused on cooking, feasting, and celebrating from home. Think expert hacks and how-tos, kitchen upgrade advice, and entertaining etiquette. It all kicks off with a guide to throwing the ultimate fondue party, and who doesn’t want an excuse to melt some cheese? Find more at Eater.com.

[MUSIC]

GRABER: Anthony Mongiello comes from a multi-generational cheese family.

MONGIELLO: My grandfather came from Italy in the early 1900s. While he was in Italy, he was a tinsmith. So when he came to the U.S., he brought his trade with him. And he made what we called metal ricotta cans.

TWILLEY: Anthony’s grandad’s ricotta cans had special holes for the whey to drain out of, which was super nifty. But Italian cheesemakers still had to mold their mozzarella by hand, until Anthony’s Dad came to the rescue.

MONGIELLO: So my dad is absolutely noted in the history books for creating the very first automated molding machine for the Italian cheese industry.

GRABER: Anthony was surrounded by both cheese, and by cheese innovations. So it’s no surprise that when he was only 18 years old, he was already following in the family footsteps.

TWILLEY: It all began when his friend’s mom asked him to make pizza.

MONGIELLO: I said, sure. Of course I can. So I brought home some cheese from work to the house, and I stopped at a bakery. And I bought the dough balls from the bakery.

GRABER: And then Anthony kind of made a mistake. He thought the balls of dough looked small, so he stuck two of them together. And then he stretched out the crust. He knew how thin the pizza itself underneath the sauce and cheese should be.

MONGIELLO: So I pushed all the excess dough to the crust. So if you could envision a cooked crust, I had a raw crust as big as a cooked crust. So I put the sauce, I put the cheese. I thought everything was fine.

TWILLEY: Listeners, it was not fine.

MONGIELLO: And as I’m looking through the glass door of the oven, I can see the pizza cooking. And then the dough that I had in the crust area started to grow and grow and grow—I couldn’t believe how big it was growing. It was like a giant ring of a zeppole or a calzone around the crust of the pizza. I was embarrassed now. I says, oh my gosh, what did I do? Well, I took it outta the oven, and needless to say, this big crust made the pie look very funny.

GRABER: They all ate it, of course. The part with the sauce and the cheese was standard pizza. But then everyone got to that huge ring of puffy crust around the edges of the pizza, where all that extra dough had gone.

MONGIELLO: And you bite it and it sort of collapses when you bite it and then it opens. And I was like, wow. If there was something inside here, that would be great. And that is truly how stuffed crust pizza was born.

TWILLEY: And the angels sang! But I mean really, had no one stuffed a crust before?

MONGIELLO: There were so many people that said, Anthony, this is too simple. Anthony, I’m sure somebody’s already created this. I have never seen anything like it. I never knew of any crust that was ever stuffed before in my lifetime.

GRABER: Anthony even did some research, and he didn’t find any example of anyone stuffing pizza crust. So he told his dad, the cheese molding machine inventor. He said dad, I have what I think is an amazing new idea.

MONGIELLO: When I told him about stuffed crust pizza, he was really impressed. And he told me, you have to protect it. The best you can.

TWILLEY: So how exactly does one protect a stroke of genius like the stuffed crust pizza?

GRABER: Well, there are in fact legal tools to protect inventions and innovation—and there have been these types of protections for a long time.

SPRIGMAN: The earliest evidence we have for something like a copyright or a patent system comes from a Greek… I think you could call him a gossip columnist. A guy named Atheneus.

TWILLEY: This is Chris Sprigman. He’s a professor of law at NYU and he writes a lot about what lawyers call intellectual property, or IP. Which is the thing you’re trying to protect with a copyright or patent system. Such as the one described by our Ancient Greek gossip columnist, Athenaeus.

SPRIGMAN: And he was writing about. The Greek city state of Sibiris, which is in Italy, in Calabria. But it was a Greek city state at the time. And he says, you know, these people were so addicted to luxury that what they really wanted was new dishes all the time, because they had such jaded palates. And so if someone came up with a new recipe, they, they would prepare it for a jury. And if the jury liked it, they would award them a one-year exclusive right to make the recipe within the city walls. And Athenaeus was like, can you believe these softies, you know, these luxury lovers? So, you know, that’s a very early intellectual property system if Athenaeus can be believed.

GRABER: Chris says Anthaneus’ writings might not be true, but it is still a good story. In any case, aside from those luxury lovers, most people who wrote things like books or recipes didn’t really worry about how to protect their creative output until the 1400s, because it was unlikely anyone would steal what they’d written. And then a new technology appeared on the scene.

SPRIGMAN: So, we never really thought about it too much until the printing press got invented in about 1450 A.D. and, suddenly it was reasonably cheap to copy. So in the years before the printing press, copying was expensive. You had to copy things by hand. There was no real economic advantage to copying. But suddenly you could take a book and you could run off a thousand copies relatively inexpensively. And people started thinking, after that, about whether that was going to prevent authors from engaging in new creative labor. Making new books.

GRABER: The concern was well, maybe authors wouldn’t bother, because it’d be too easy to rip them off. So why create in the first place?

TWILLEY: Interestingly, at about the same time, there was a burst of creativity in what’s now Italy, in places like Venice and Florence—it was the start of the Italian Renaissance, with people like Leonardo da Vinci and Michaelangelo coming up with all sorts of groovy new inventions.

GRABER: And local rulers granted them exclusive rights to those inventions for a number of years. It was basically the intellectual dawn of the patent system.

TWILLEY: Which continued to develop, and was increasingly formalized in Britain as the Agricultural and Industrial Revolutions got going. And then the first modern copyright laws protecting authors—they emerged in England in the early 1700s.

GRABER: And then the idea of protecting intellectual property was adopted by the new leaders of the United States, just a few years after the Constitution was written. One of the first things the new government did was enact the Copyright Act of 1790.

VALERIE FLUGGE: And our founders decided that in order to encourage and reward creativity and innovation, they would provide certain protections that, would reward innovation, creativity, for a certain period of time, and then allow those innovations and creativity to go into the public domain, so that other people could benefit from them as well.

TWILLEY: Valerie Flugge is an assistant professor of business law at California State University Northridge, she’s written about food and IP law.

GRABER: Anthony wanted to benefit from the protections laid out by our founding fathers. But it turns out there are a bunch of different ways to protect IP.

FLUGGE: So there are basically five different types of intellectual property that can be used to protect not only food, but any kind of innovation or creativity. They’re not all five available. It depends on the circumstances.

TWILLEY: We’ve mentioned a couple of these already. There’s copyright. Then there’s patents.

FLUGGE: There are two different types of patents. There are utility patents and design patents.

GRABER: And then there are two we haven’t mentioned yet. They’re trade secrets, which is like Coke’s secret formula, that is still a secret today, and trademarks—the name Coca-Cola is trademarked.

TWILLEY: So which from this smorgasbord of IP protections should Anthony pick to make sure he reaps the maximum benefit from his stuffed crust invention?

GRABER: Now Anthony came up with a new recipe—maybe he should copyright it, just like Anthaneus said that people were doing in ancient Greece.

SPRIGMAN: So copyright the idea is that we’re going to give authors and artists some period of exclusivity during which they can use the law to prevent others from copying their work. And this will give them enough time to make back the money they’ve invested in creating in the first place. And this will prevent copies from depressing incentives to create.

TWILLEY: Lots of creative things can be protected by copyright. This episode of Gastropod is copyrighted, so is Taylor Swift’s new song, so is Disney’s latest movie.

GRABER: Copyright is a really important form of protection, it’s super strong, and it lasts for at least 70 years after the creator’s death. Things stay pretty locked up—for instance, nobody could do anything at all with Mickey Mouse without Disney’s permission until literally this year, 2024, when the copyright protection ended.

FLUGGE: So there’s a long-term protection if you can get copyright. The problem when it comes to recipe and food design is that neither one really qualifies and meets this, what is necessary to get copyright protection.

TWILLEY: That’s because copyright is designed to protect creative expression. To qualify, your creative expression, whatever it is, it has to be original and it has to be fixed in something that lawyers call a tangible medium—something more or less permanent.

FLUGGE: And the courts have held with respect to recipes, that recipes are not creative expression. Recipes are really facts: a method and a procedure.

SPRIGMAN: So, copyright doesn’t cover facts. And copyright also doesn’t cover ideas or methods or processes. These are outside the scope of copyright. So if you think of recipes at their essence, their facts and processes, it’s an instruction, right? For taking a bunch of stuff. Flour, water, yeast, bit of salt. Right, these are the facts of what’s in bread. And then, running them through a bunch of processes, you know, mixing them, kneading them, shaping them, baking them. That’s at its core what a recipe is, and none of that stuff can be protected by copyright.

TWILLEY: This seems kind of bananas—I mean, I think of coming up with a new recipe as super creative. And I am not alone. Lots of recipe creators agree with me and have tried their case. But Chris says, no dice.

SPRIGMAN: They have a moral argument. They don’t have a great legal argument.

GRABER: The law is firm on this one. Copyright doesn’t cover facts and it doesn’t cover processes, and judges have said multiple times that’s what recipes are.

SPRIGMAN: It’s just outside the domain of copyright.

GRABER: There is one way that recipe writers can get a copyright, and that’s if they have stuff around the recipe that isn’t the actual recipe itself.

FLUGGE: So if you use artwork, or you have some creative commentary along with your recipes, or you arrange them in a particularly creative order, you may get copyright protection to extend to that.

SPRIGMAN: So, you know, Nigella Lawson writes a book and there are recipes in the book, but there’s also all kinds of stuff about her, her life, her wardrobe, you know, her, her house. And that stuff, that kind of, you know, descriptive stuff that isn’t really at the core of the recipe, but is more about expressing some other thing. That’s, of course, copyrightable. The recipe isn’t.

TWILLEY: Okay, so even if I disagree with the legal philosophy here, the long and short is that Anthony is not going to be able to copyright the recipe for his pizza invention.

GRABER: But what about protecting it as a trade secret? His secret method for stuffing a crust? That seems like it could make sense.

FLUGGE: Trade secrets protect information that a business keeps private. And has some potential economic value. And the business develops it, takes reasonable steps to keep it secret. And if they do that, the business owner is protected to a certain extent from other people being able to access that information.

TWILLEY: The weird thing about trade secrets is, it’s not something you apply for, like copyright or a patent.

SPRIGMAN: And in fact, applying for it would cancel the protection, because you would have to tell the US government what it was you were protecting. And if those records became available to other people, they’d disclose the information.

GRABER: In our Coca-Cola episode, we described all the things the company does to keep their secret formula a secret, like keep it in a vault and only a couple of people know it at a time. And in fact, Coke stopped selling their soda in India in the 1970s because the Indian government required foreign companies to share all their trade secrets with the government in order to do business there.

TWILLEY: And Coke wouldn’t share. Because if they told their secret to the Indian government, then people everywhere else, including in the US, could argue that it wasn’t really a secret anymore, and Coke would lose their trade secret protection everywhere. Even though India is one of the biggest markets in the world, Coke didn’t go back on sale there until the 90s, after a new government changed the rules.

GRABER: Coke of course isn’t the only company that’s taken extraordinary means to protect what they market as the secrets of their success.

FLUGGE: So as some examples, Kentucky Fried Chicken. The way that they make their coating on their chicken is protected by trade secrets.

COLONEL SANDERS: At KFC we do chicken right. Cause we got the secret! [GASPS] What you lookin’ at?

FLUGGE: They’ve created whatever it is they’ve created, they’ve kept it confidential, they’ve kept it away from the public. And so that is protected for them.

TWILLEY: Basically what happens when you have trade secret protection is if someone tries to take your secret to a competitor, you can sue. And if you can prove that you did your best to keep it a secret, you’ll likely win. But if the judge decides you didn’t keep it a secret, you can lose trade secret protection.

FLUGGE: McDonald’s used to have trade secret protection for its Big Mac sauce. But that was arguably lost a few years back when one of their chefs did a video telling people how they could make the secret sauce at home.

GRABER: This happened in 2012, McDonalds at the time was trying to be more transparent about what was in their food.

NEWSWOMAN: For years, that special sauce was a big secret, guarded closely inside McDonald’s headquarters in Oakbrook, Illinois. That is, until now.

DAN COUDREAUT: We’re going to make a version of the Big Mac, with ingredients that are similar that you could buy at your local grocery store.

NEWSWOMAN: In a video posted on YouTube, McDonald’s Executive Chef Dan Coudreaut takes to the kitchen and finally reveals the makings of one of the fast food industry’s best kept secrets.

TWILLEY: What this means is that McDonald’s can no longer sue if BK decides to serve a burger with special sauce.

GRABER: Even before the video came out and McDonald’s lost its trade secret protection, Burger King could have decided to make that special sauce that if they really wanted to, they’d just have to buy a McDonald’s burger with special sauce and try to reverse engineer it.

FLUGGE: Trade secrets do not protect somebody from somebody buying their food product, their recipe. As, as I assume many of your listeners are, they’re really good at tasting something and trying to figure out what inside it. So if somebody buys a Coke, tastes it, and says, hmm, I think I know what’s in this and in what proportion, and makes it on their own, they can do that.

TWILLEY: This loophole is a bit of a dealbreaker for the Big Cheese. After all, once you’ve seen a stuffed crust pizza, you can probably figure out how to make it. So actually trying to protect stuffed crust pizza as a trade secret wouldn’t offer much protection at all.

GRABER: Another problem for Anthony is that he wasn’t running a pizza empire, and he didn’t want to. But for stuffed crust to become a reality, he would have to tell someone else how to make it. Trade secret really couldn’t be the way for him to go.

TWILLEY: Which of the other three IP options would protect his invention? We’ll find out after the break.

[BREAK]

TWILLEY: Okay, so copyright and trade secret are a bust. But what about IP protection option number 3? What about trademark, and its subcategory, trade dress?

GRABER: Trademark and trade dress are for something that is uniquely associated with your product. Trademarks are for the product name, like say Campbell’s Soup or Baked Lay’s, and trade dress is the signature way a food looks, like if your cheese cracker is in the shape of a goldfish.

FLUGGE: The question would be: when you see that orange fish cracker, do you think to yourself, oh, this is an orange fish cracker. Or do you think, is this the Pepperidge farm goldfish cracker?

VOICEOVER: The snack that smiles back—Goldfish!

FLUGGE: So if you think this is a Pepperidge Farm Goldfish cracker, then you’re thinking about the manufacturer of the product. And the trademark protection is so that somebody else can’t come out and produce a similar looking cracker that may not have the same quality, or may be playing off of your goodwill. And let’s say you eat one of those other crackers and you say, oh. This is terrible. I will never eat a Pepperidge Farm Goldfish cracker again. When it wasn’t a Pepperidge Farm Goldfish Cracker to begin with.

GRABER: Companies have challenged Pepperidge Farm on their trade dress. In the 90s, Nabisco decided to make a cheesy cracker mix connected to a Nickelodeon kids cartoon called CatDog.

SINGER: One fine day with a woof and a purr, a baby was born and it caused a little stir; no blue buzzard, no three-eyed frog, just a feline, canine, little CatDog— CatDog! CatDog! Alone in the world is a little CatDog.

GRABER: The character in the cartoon was half cat and half dog, and so Nabisco made a cracker mix that had three shapes, one was that half cat, half dog, another was a bone, and third was a fish.

TWILLEY: And Pepperidge Farm was not having any of it. They took Nabisco to court and they argued that consumers might eat this Nickelodeon-inspired snack mix with its fish shaped crackers and be confused because people clearly believe that all cheesy fish crackers are Pepperidge Farm crackers.

SPRIGMAN: Now, okay. So if enough consumers are confused, and you know what the, what the threshold is has always been a bit of a mystery, but some courts would say 15% is enough. Okay. So if 15% of consumers of these kinds of snacks are confused, then that’s a trademark violation. The, the senior user of that shape, essentially gets to bar other companies from using something like it.Not just fish, but whales or maybe even rockets. So I’ve got to express some skepticism, and that is that trademark law, as it’s evolved in the United States, basically thinks of consumers as morons in a hurry. And you know, whether that’s actually what consumers are, how they act, is largely unexplored. But some of the things that are found to be trademark infringements, you would think if anyone’s paying any attention whatsoever, this would not be confusing. But, you know, anyway, I’m reporting. You decide, I guess.

GRABER: Chris may think that other companies should also be able to make vaguely fish-shaped crackers and that consumers are smart enough to know the difference, but Pepperidge Farm won the case. And lots of companies have trademarks that allow them to protect their names and designs. Magnolia cupcakes frosting swirl, Hershey’s kisses—that unmistakable shape. And one of my childhood favorite ice cream cakes, Carvel’s Fudgie the whale.

VOICEOVER: Fudgie the whale! Is back. That’s a whale of a cake for a whale of a dad.

TWILLEY: Bingo! I would assume that a Stuffed Crust Pizza is surely as iconic as Fudgie the whale or a fish-shaped cracker? But Valerie said not so fast.

FLUGGE: The legal concept is, when it comes to a product design, you can’t get trademark protection until it’s acquired something that’s called secondary meaning.

GRABER: Secondary meaning is when the thing is so famous that it’s associated with your company. Like if you see the red and white design of a can, you know it’s Campbells. Same with Goldfish, those are Pepperidge Farm’s. But stuffed crust? Nobody would look at that and think, that’s the Big Cheese himself.

TWILLEY: Because nobody knew what stuffed crust pizza even was, it wasn’t a thing yet. And you can’t get trade dress protection until your product is a thing.

GRABER: And there’s another problem Anthony would face. If he wanted to get trade dress protection, the thing he would want protection for would have to be purely ornamental, it couldn’t be functional at all. This limitation came up when the Japanese company Pocky tried to sue another company that made a similar-looking coated cookie treat.

SPRIGMAN: The court in the Pocky case, and this is the Third Circuit Court of Appeals in Philadelphia. The judge is a guy named Stephanos Bibas. He wrote an incredibly thoughtful opinion, I thought, about whether Pocky could be protected by, basically, trade dress. And he said, well, this can’t be because it functions. It all functions. So how does it function?

TWILLEY: If you haven’t had a Pocky, it’s just a long skinny, cylindrical cookie stick with a coating over, say, four fifths of it.

SPRIGMAN: And, Judge Bibas said, well, you know, the, the shape of the Pocky, it has this handle and the handle is there so you can eat the Pocky without getting chocolate in your hands.

TWILLEY: Denied! And the same thing happened to Dippin’ Dots, which are these weird little multicolored ice cream balls that neither Cynthia nor I have ever tried. They apparently had a bit of a moment in the ‘90s in mall food courts and places like that. And Dippin Dots brought a case against a rival called Mini Melts who had started making a copycat little ice cream ball snack.

FLUGGE: And it was denied because they found that, that those small beads were necessary to make the product creamy. So again, it was functional. It was a way to make a creamier product. It wasn’t just an ornamental look.

GRABER: Judges don’t grant trademark protection easily, because if you get a trademark, then nobody else can ever make something that looks like your trademarked thing.

SPRIGMAN: As long as you’re using it to indicate the source of products, that—that right can last at least notionally until the end of time. And so to withdraw a functional thing from common use, and to give a monopoly in it to one company forever and ever and ever, is a serious thing to do.

TWILLEY: I mean, imagine if only one company could make a chocolate coated cookie stick or a tiny ice cream ball for the rest of all eternity.

GRABER: Or if Anthony was the only person who would ever be able to stuff the crust of a pizza?

TWILLEY: Humanity as a whole would lose.

GRABER: So all we have left on our list of IP protections is patents. That’s it. Now Anthony had designed a new pizza crust—maybe a design patent would do the trick?

SPRIGMAN: So design patents don’t protect the way things work. They protect the way an article of manufacture looks, the ornamental appearance. And you could apply design patents, for example, to the shape of a breakfast cereal.

TWILLEY: Basically, if you’ve made a breakfast cereal that has a new and original look or design—you can apply to the US government and get a design patent and no one else can make a breakfast cereal that looks like your product for 15 years.

SPRIGMAN: So let’s say we have a particular shape for breakfast cereal. It’s just ornamental. It’s not meant to do something like hold the milk better or, you know, feel better in your mouth. It, it doesn’t have a, a useful feature. It’s really just, you know, decorative. That can be covered by a design patent.

TWILLEY: You might be thinking, what up, lawyers, isn’t that the same thing as trade dress? But Valerie told us that though they are similar, they are also slightly different—in ways that companies often take sneaky advantage of.

GRABER: Remember, you can’t get trade dress protection until your product is recognizable as your unique product by consumers, ‘til it has secondary meaning. Well, if you get a design patent first, then you get 15 years of exclusivity to build up your rep in the marketplace.

TWILLEY: And then when the design patent expires, you’re more likely to qualify for trade dress protection.

GRABER: And Valerie told us that plenty of foods *have* been protected by design patents.

FLUGGE: Lots and lots of Kraft pasta products. So, I don’t know if you ate these growing up, but I certainly did. You would get Kraft mac and cheese, that the pasta would be shaped like a dinosaur, a map of the United States, more recently, I think because of Harry Potter, a magic wand. And all of those are protected by a design patent.

GRABER: Anthony’s new pizza *would* look a little different from a regular pizza, because its crust would be so huge. But there’s a problem: a product can’t get a design patent if the function of the new invention causes the design. A stuffed crust pizza only looks the way it does because there’s stuff in the crust that makes the crust bigger. The function causes the design, so he couldn’t get a design patent.

TWILLEY: Which only leaves one option for our hero: a utility patent. And the criteria for a utility patent are strict.

FLUGGE: First of all, it’s got to be useful. Secondly, it has to be what they call novel, which means it’s got to be new. It can’t be something that’s already been out there. And then in addition to that, it has to be what they call non-obvious. So it has to be something that wouldn’t—if somebody’s in your same situation, wouldn’t say, oh, that’s really clear. That’s easy. That doesn’t take a lot of thought to get to that next step.

GRABER: Valerie told us that despite these strict criteria, there are quite a few foods that have utility patents, that were able to prove to the US patent office that the food or maybe the technique to make it was novel and useful. There’s microwaveable sponge cake, and an instant stuffing mix, and probably my favorite, Spaghetti O’s. Putting saucy pasta in a can was a real step forward for children everywhere.

MALE SINGER: The neat round spaghetti you can eat with a spoon!

KID 1: Uh-oh!

KID 2: Uh-oh!

KID 3: Uh-oh! Spaghetti-O’s.

SPRIGMAN: The real problem was, if you cooked the spaghetti first and then put it in the sauce in the can, it would get very mushy. So Campbell’s came up with a way of actually putting, essentially, raw spaghetti in the can along with sauce. And they came up with a way of both cooking and agitating the can so that the spaghetti cooked in the can. So this was a pretty famous patent back in the mid-twenties, long ago expired. But that, that wasn’t terribly silly. If you like spaghetti in a can, this was a slightly better spaghetti in a can. As an Italian-American, I find this horrible to contemplate, but nonetheless, there you have it.

TWILLEY: Like Chris says, Spaghetti-O’s may not be the most authentic pasta dish, at least according to anyone of Italian heritage. But the patent itself—that was legit. Not so much for another iconic food that Smuckers tried to patent: the PB and J.

MAN: With a name like Smuckers, it has to be good!

WOMAN: And for moms in a hurry, Smuckers makes Uncrustables PB&J Sandwiches. Smuckers starts with delicious peanut butter and jelly, takes off the crusts, and seals in all the goodness of homemade.

FLUGGE: So they claim that their patent, their food item was a, an innovative way to make a peanut butter and jelly sandwich. Which involved putting the peanut butter on the bread, and then putting the jelly in between the peanut butter, and then crimping the bread. And this way the jelly wouldn’t leak out and it wouldn’t get the bread soggy. Because the peanut butter would prevent it from spreading to the bread.

GRABER: But the patent office did some research themselves, and they said nope, Smuckers, you didn’t invent anything new.

FLUGGE: There were articles on how to make a good peanut butter and jelly sandwich that said, if you don’t want the jelly to leak, or if you don’t want it to go and make the bread soggy, put the peanut butter on first and put the jelly in the middle. So this was a product that the patent office found, was not novel, and it was not non-obvious.

GRABER: So this was what Anthony had to prove to the US patent office, that his invention of stuffed crust pizza was new and non-obvious and useful. Would it work? Would stuffed crust be seen as Spaghetti O’s—or Uncrustables?

TWILLEY: That decision, after the break.

[BREAK]

MONGIELLO: So at the time I was working construction in Manhattan. And I was running a big job.

GRABER: Anthony may have been working construction, but his mind was still focused on stuffed crust pizza. He knew that, as we said, he had to prove to the patent office that his invention was new and non-obvious and useful. And so he started to go through the checklist: would it be useful?

MONGIELLO: So I would go walking around the construction floor after they had their lunch, and I’d see pizza boxes. And I would open them. What did I see? Four, six crusts just sitting there. Ah. Okay. If you stuff this crust, people will not throw it away. They’re going to eat it. There’s the beneficial aspect of it.

TWILLEY: Done. Clearly a useful invention. For the other criteria—that it was new and non-obvious—Anthony hit the books. As far as he could see, no one had done this before. So far so good. He put together the application.

MONGIELLO: And I did it. It took me over three years to achieve my patent. The examiner in the patent trademark office was having a hard time conceptually understanding what this product was. He told my attorney that, oh, I, I can’t get a patent because it sort of infringes in an apple turnover or a ravioli. And I had to fly my attorney, to the patent trademark office, for him to sit down face-to-face with the examiner, to explain to him: this all is about a pizza. And after he came back, I was awarded my patent in 1987, patent number 4661361.

GRABER: Amazing. But that was still wasn’t enough for Anthony—he wanted to make extra sure that he had solid protection on all sides, so he went ahead and applied for a trademark to protect the name of his pizza, too.

MONGIELLO: So. Common sense, I called it Stuffed Crust Pizza. But when I applied for the trademark, the trademark office says, look, that’s too descriptive of a sentence. And you cannot trademark something that describes something. So I changed it to Stuff’n-the-Crust with a hyphen after the n and a dash. And lo and behold, I got my trademark Stuff’n-the-Crust.

TWILLEY: And then, with all that IP protection locked down, Anthony started cold calling the big dogs—Dominos, Little Caesars, and of course Pizza Hut.

MONGIELLO: And the only people that entertained the thought of talking with me and wanting to see my concept, guess who that was? Pizza Hut.

GRABER: The company wanted more information, they asked him to send his designs.

MONGIELLO: This was the only open door I had, so I stuck my foot in it, and I sent them the patent. I sent them the trademark, I sent them the process, I sent them everything, and they sent me back a letter saying thank you, but we are not interested in this product.

TWILLEY: Anthony was understandably a bit discouraged at this point. But he didn’t give up—a few years later, he tried again, and this time Pizza Hut suggested he should send his patent and the process description to their R&D department. So he did.

GRABER: But then, they still said they weren’t interested.

MONGIELLO: So in 1991, I, I started my business, my Formaggio cheese business. And then in 1994, I have—sitting at my desk and I get a phone call from a friend of mine. And he says to me, Anthony, congratulations. I says, what do you congratulating me for? He said, you sold your pizza idea to Pizza Hut? I said, I don’t understand what you’re talking about. He says, Anthony, look the newspaper. So I go and get the newspaper and it was the centerfold of a newspaper. And it said, Pizza Hut is launching, in 1995, a $45 million advertising campaign. For their new product they call: stuffed crust pizza.

VOICEOVER: What’s better than a cheesy bite? Cheese in every bite. That’s why we invented stuffed crust pizza. Topped and stuffed with almost a pound of cheese. There’s only one original. The original stuffed crust pizza from Pizza Hut. No one out-pizzas the Hut.

MONGIELLO: I nearly fell off my chair. I, I couldn’t believe it.

GRABER: Pizza Hut said that their brand new creation was the brainchild of a woman in their R&D department. She said she was inspired by a guy in a focus group who said he’d feed his crusts to his dog.

TWILLEY: The stuffed crust pizza was an instant sensation. I remember my brother begging my mum to take us to Pizza Hut so we could try it. And clearly we were not alone because it sold like hot cakes. Hot cheese-stuffed cakes.

MONGIELLO: The statistics that I looked up. In 1994 Pizza Hut had 8,200 outlets. They were doing $4.6 billion in sales. In 1995, after the launch of stuffed crust pizza, their sales grew to $5.2 billion. Now here we are in 2024, three of the largest pizza companies in the world—and that’s going to be Pizza Hut, Little Caesars, and Papa John’s—all three of them are making stuffed crust pizza. Never mind all the different varieties you’re going to find of brands in a supermarket. It’s a multi-billion dollar concept.

GRABER: But back in 1995, Anthony had no idea how big a deal this new pizza was going to be—he just knew that something was wrong. He had the patent for stuffed crust pizza.

TWILLEY: After he nearly fell off his chair, Anthony picked up the phone. He called Pizza Hut, told them who he was, and he was immediately passed along, up the chain.

MONGIELLO: Third person answers the phone. I says to the gentleman, hi, my name is Anthony Mongiello, and he says, we know who you are. And there was silence. He says to me, we’ll offer you $50,000 for your patent and your trademark.

GRABER: Anthony briefly considered it, but instead again he thought, no, I have the patent! You, Pizza Hut, you’re infringing, and I want both recognition and a piece of the pie. He reached out to his lawyer, and his lawyer said he had a case.

TWILLEY: But he needed evidence to prove that Pizza Hut was infringing on his patent, he needed to figure out whether they were making their stuffed crust the same way he specified in his patent.

MONGIELLO: I used to go to the stores and buy stuffed crust pizza and I’d—my brother would stand there with a video camera trying to film the people in the back so we could try and see how they were making this. But my brother would be there with a camera. I’d order the stuffed crust pizza. I had a, a razor knife in my pocket. [LAUGH] As soon as they handed me the pie, I would run to a table or a countertop and I’d take the razor out and I would cut the thing open and I’d look from inside and I could see the string cheese, and I could see the spaces in between the string cheese of just the dough.

TWILLEY: Which was exactly the method Anthony had specified in his patent. Time to see Pizza Hut in court.

GRABER: Anthony thought it’d be quick, but the case dragged on. There was plenty of evidence given on both sides. Pizza Hut’s argument was that they invented it in-house, and that they were making it a different way than was in his patent. Anthony obviously argued the opposite, that they were doing just what was in his patent.

TWILLEY: The case was tried by a judge, as patent cases usually are, rather than by a jury. And in the end, the judge ruled against Anthony. He based his decision on two things. One, he said that Pizza Hut hadn’t infringed the method, because Anthony had described crimping the edges of his pizza innovation to create individual slices, and Pizza Hut didn’t do that. Anthony says that’s not the point, they basically used the same method

MONGIELLO: The way they put these cheese sticks on the dough base, separate. Individual food portions, equally spaced, is exactly what they did. They copied my patent verbatim.

GRABER: But the judge had another comment when he ruled against Anthony. He said that the patent was not valid, because there had been prior publication of a similar technique in a Women’s Day magazine cookbook called Encyclopedia of Cookery. Basically, the judge invalidated the patent.

FLUGGE: That can happen. A judge can say, meh, the U.S patent office should not have granted that patent in the first place. The difference being is that when it goes to trial, the judge is hearing more evidence than the patent office examiner does when they decide whether or not to deny or grant the patent.

SPRIGMAN: And that sounds to me roughly like a good result. Because, you know, stuffed crust pizzas as a genus, I think that that’s probably too broad to be owned.

TWILLEY: Sorry Anthony, Chris is not on team Big Cheese.

GRABER: Anthony didn’t appeal, but of course he has always and always will consider this something he contributed to the world of culinary delights.

MONGIELLO: I’m really sorry that things went down the way they did. But the truth is, I am, Aaa always will be, the creator and originator of Stuffed Crust Pizza. And I have a United States patent issued to me in 1987 to prove it. Now, Pizza Hut never invented this. They never got a patent. No one could ever get a patent. Because I have one.

TWILLEY: In other words, Anthony feels like sure, Pizza Hut may have made the stuffed crust into a hit, but you can’t take the glory away from him. And he’s still innovating in cheese products today!

MONGIELLO: Every product I make is a Mongiello original creation. We were the first company to marinate a little ciliegine ball and put it in a cup with all the herbs and spices that a consumer can go grab and go and pick up. We were the first to make a prosciutto and mozzarella roll with the meat wrapped around the outside of the cheese. I am an artist and my cheese is my canvas.

GRABER: Anthony says he was the first to create these types of snacks. And the big thing he took away from his past experience is that he also has to be the first one to sell them.

MONGIELLO: So what I’ve learned from that, and I’d like to teach everyone, is if you have a concept, first of all, run to market as soon as you can. So in my world and in my business, all I do is I, I’m there first.

TWILLEY: This tactic, it’s called first mover advantage in the business world. And it’s one of a range of ways that people who invent something but can’t protect it very well under the existing IP laws can still reap the benefits of their inventions.

GRABER: Chris studies the world of inventions that aren’t necessarily protected by IP and the fields that it applies to. Things like fashion, tattoo art, and, yes, food.

SPRIGMAN: If you want to know how IP works, one way of doing that is looking at places where there’s lots of creativity, but there’s not a lot of IP. And then try to explain, well, how does that work, and what difference does it make that IP is at least partially absent?

TWILLEY: Chris says that in the world of food, where, as we’ve seen it can be kind of hard to protect new inventions using IP law, being first to market is a popular strategy.

GRABER: Take the case of a surprisingly viral pastry sensation: the cronut.

BROADCASTER: One of the hottest things in New York City right now is a pastry called the cronut. It’s so popular the inventor is now fighting other bakers who want to copy the cronut.

SPRIGMAN: So the cronut is an interesting example of an early mover, an innovator, who had a period of exclusivity before others figured out how to produce the cronut well, right? And, and reliably.

GRABER: Dominique Ansel is a famous baker in New York, and in 2013 he started selling a hybrid croissant and doughnut that he brilliantly called the cronut. It was an immediate hit, so much so that people were lined up outside the door within days, and he trademarked the name just a week later.

MO ROCCA: When Tony Tang, of Tony’s donut house in Los Angeles, started making his version of the cronut, he was promptly served a cease and desist letter for using the trademarked “cronut” name.

TONY TANG I’m reading this letter and I’m like, loving him, and then I’m hating him. And I’m loving him, and I’m hating him… but then when it was all done I still loved him. [LAUGH] Because he’s the man.

MO ROCCA: Tony’s pastry is now the “crave-nut.” Other pastries around the country are going with the “doissant.”

TWILLEY: Other aspiring cronut bakers came up with copycat croolants, and crognets. It was a phenomenon. And even though Dominique Ansel didn’t have a patent and couldn’t stop others from making the same pastry, he still benefited from getting there first and trademarking the name.

SPRIGMAN: During that period, there was a ton of news coverage, people associated the cronut with that innovator. And that of course burnishes the innovator’s reputation. So the fact that, you know, that notable invention’s associated with you provides some returns, and, in some instances that may be enough.

GRABER: That’s one method to profit off an invention without having a lot of legal protection. Chris says there’s another way people can reap those rewards, it’s what he calls attribution.

TWILLEY: Attribution is particularly common in the world of high-end cuisine, with chefs at fancy restaurants.

SPRIGMAN: So chefs may cook someone else’s recipe, sometimes with some modifications, and they’ll say, you know, inspired by. Right. On the menu. This, this comes from a place. And sometimes when chefs fail to do that, you know, there’s complaining. There’s not lawsuits. But there’s complaining within the community. And that complaining within the community may be enough, over time, to encourage people to provide that kind of attribution, which builds the reputation of the chef that originated the recipe. That reputation contributes to the success of the chef’s restaurant. It’s a complex ecosystem. It’s, it’s not simple like IP, but it, it’s effective.

TWILLEY: The other thing Chris has noticed is that sometimes the lack of IP protections—it doesn’t reduce creativity, but it does change what form that creativity takes. He gives the example of bartenders. You can’t patent or copyright a new cocktail recipe, but if it takes some flair to make it, then it’s harder for other people to copy. So the lack of IP law favors cocktail innovation that requires some performance art, too. Same applies in restaurants.

SPRIGMAN: So a restaurant with great service, with beautiful decor, great ambiance, that—that is a performance, that’s a performance of the food. And that performance is also very difficult often to copy, right? High quality, great ambiance in a restaurant is something that isn’t cheap to just replicate. So again, it’s like—you know, the, the lack of IP protections either formally like in recipes or really de facto on the street, like in music, after Napster. This contributes to the encouragement of some forms of consumption. And the discouragement of other forms of consumption. The encouragement of some forms of creativity and the discouragement of other forms of creativity.

GRABER: Like today, musicians make most of their money from tours, not from selling albums, because it’s so easy to stream and even to pirate music. But you can’t copy the experience of a live show.

SPRIGMAN: So, you know, again, it’s like the world changes. But it’s, it changes in complex in an interesting ways. That might be good, might be bad. We could debate that, but it’s very interesting.

GRABER: Neither Chris nor Valerie thinks our IP system is perfect. One issue is that these types of legal protections mostly help out people and companies with deep pockets. Because they’re the ones who can afford to sue for any kind of infringement, and they have the resources to keep a lawsuit going.

TWILLEY: There’s a cynical saying that’s often credited to Thomas Edison, who ended up with more than a thousand patents: a patent is merely a title to a lawsuit. And it’s kind of true: like we saw in the tale of Anthony Mongiello and the stuffed crust pizza, a patent doesn’t do anything unless you have the money to take advantage of that period of exclusivity, and the cash to hire lawyers to defend it in court.

FLUGGE: Rarely do you see the little guy coming out on top.

GRABER: Which is too bad, because at the end of the day, the point of these protections isn’t to increase the number of cases that lawyers can argue or to ensure that only rich companies are protected. In theory it’s really to make sure that the people who are inventing things can benefit from that invention and so will want to keep inventing.

TWILLEY: But there’s an important nuance in there: the point of IP is not just about what’s fair for the individual inventor, it’s about what’s good for society as a whole.

SPRIGMAN: The logic is to give people enough of an incentive that they will create. Not to give people complete property rights forever and ever and ever over the creation.

TWILLEY: Chris says that in the end, whether you can patent a pizza or not—that’s not the right question. What matters most is: are we getting enough creativity in the realm of pizza, or food in general? Are there new dishes and new recipes? And, there are.

SPRIGMAN: If recipes are under-produced, so if the freedom to copy recipes means that we don’t get a lot of recipes. Then maybe we should be worried. I think the fact is we get a lot of recipes. We get a ton of culinary creativity. And this, I think, proceeds from something we really haven’t referred to, which is, cuisine is a much more open art form. One in which there’s a lot more sharing of information. One in which also builds on very deeply rooted traditions, culinary traditions, that reinvents these traditions, that reworks them. And, you know, this is a way—this is an environment in which creativity can also happen without much intervention from intellectual property.

TWILLEY: To be fair, all creativity builds on other creativity. Artists look at other art, writers read other writing, podcasters listen to other podcasts. But perhaps it’s even more so in something like food, which is so central to our survival and our identity.

GRABER: And our daily enjoyment! The patent examiner pointed out that raviolis and apple turnovers already existed, so did empanadas and calzones. There’s stuffed crusts all around us. So maybe stuffed pizza crust was just waiting to happen.

[MUSIC]

GRABER: Thanks so much to Chris Sprigman, Valerie Flugge, and Anthony Mongiello, we have links to their research and their food innovations at gastropod.com. Plus, we have a link to a new short movie that tells the story of Anthony’s case from his perspective. It’s called Stolen Dough.

TWILLEY: And of course thanks to our amazing producer Claudia Geib. We’ll be back in two weeks with a brand new episode!