A little off the beaten track or should we say a short walk into the woods of northern Italy with our faithful truffle hound. We wish more law firms would write pieces like this.
The following was republished by Lexology
White Alba truffles from the Piedmont region of Italy—and black winter truffles from Périgord, France—are a fount of gastronomic legends.
A black truffle and foie gras soup, served with a puff pastry topping, is the signature recipe of the late, great French chef, Paul Bocuse.
My first indelible taste of a White Alba truffle came shaved atop a Carnaroli Risotto Biologico with a Castelmagno Mousse, served at Per Se, Chef Thomas Keller’s restaurant in Manhattan—at $175 per plate (2011 price).
Why do these exotic truffle nuggets captivate our senses in the course of depleting our pocketbook? Their wafting aroma creates a pheromonic stage for intense consumer demand—expensive to satisfy, at least authentically. Worldwide commerce in scarce truffles in turn engenders some peculiar and perhaps surprising intellectual property law issues.
“Mozart” and “Black Diamond” Truffles
Truffles are the most precious representatives of goût de terroir (“taste of the earth”) in the world. They are “the fruiting bodies of mychorrhizal fungi associated principally with the roots of oak trees in forests and oak plantations.” “In general, truffles have no stalk, no gills and its mycelium grows underground. Rather than having the soft and fragile feature of common mushrooms, mature truffles tend to be firm, dense, and woody.”
When the Italian mycologist, Carlo Vittadini, discovered the Périgord black truffle in 1831, he gave it the scientific name Tuber melanosporum. Tuber, the genus, is a Latin word meaning “a lump or swelling”; whereas the specific epithet melanosporum means “black spores.” In French haute cuisine, they are known as “black diamonds” and the “jewel of cookery.”
The White Alba truffle, Tuber magnatum, is characterized by a pale smooth exterior and cream or ochre interior. White truffles are found in the Piedmont region of northern Italy and the Motovan Forest of the Istrian Peninsula in Croatia. Their spore-bearing material is marbled by white membranes in a random wandering form rather than any regular pattern.”  An Italian composer refers to White Alba truffles as “the Mozart of mushrooms.”
“We Feast First With Our Eyes”
Shakespeare’s Sonnet No. 47 spawned the maxim, we feast first with our eyes. Yet, applying that adage to mushrooms buried in dirt is problematic. One commentator aptly states:
There is no point in trying to describe the shape of a truffle; they are the ultimate in shapelessness. Blobs, sometimes more or less spherical but quite often multi-lobed, the outer surface of the Périgord Black Truffle is dark brown to black, covered in small crazed polygonal sections with shallow rivers between them—not unlike limestone pavement, but less regular in size and not aligned in any systematic way.
Another scientific paper puts it more bluntly: “truffles are rounded, ugly and potato-shaped mushrooms with a subterranean habit.”
Truffle Aroma as a Pheromone Aphrodisiac
The truffle’s enveloping odor—not appearance—drives market demand. Academic research reveals that “upon maturation of spores, truffles emit an intense aroma that acts as an attraction signal for fungivore animals that promote truffle reproduction.” Some liken the black truffle smell to a “‘wet forest’ aroma with a slight taste of radish and a tint of hazelnut”; whereas the white truffle possesses “a garlicky cheese aroma with subtle methane overtones.”
Reputedly, Piedmont and Périgord truffles exude a scent that mimics a pig’s sex hormone. More recently, researchers identified this scent as a “steroidal pheromone having a musk odor.”
This scientific finding lends credence to ancient beliefs about truffles. “Aristotle referred to the truffle as a ‘fruit consecrated to Aphrodite,’ and the Roman physician Galen warned that over indulgence in truffles could lead to voluptuousness.” Even the famous French gastronome, Jean Anthelme Brillat-Savarin, investigated the widespread belief that “truffles are conducive to erotic pleasure,” but concluded that “the truffle is not a true aphrodisiac but in certain circumstances it can make women more affectionate and men more attentive.” 
More than 50 volatile compounds play a role in a black winter truffle’s aroma, with about nine being the key-flavor compounds. One isolated volatile chemical, 2,4-dithiapentane, is now the main ingredient in manufactured “truffle oils” that actually contain no real truffles at all. Most commercial truffle oils are made by mixing olive oil with this organosulfur compound. 
Putting aside their amorous-inducing qualities, truffles seem to generate a mild form of euphoria. Eugenia Bone, a mushroom scholar and journalist, describes her father’s reaction when handed a white Italian truffle:
One year when we joined [my cousin Mario] on a [white Italian truffle] hunt, Mario gave my father a truffle about the size of an almond, which he dropped into the inside pocket of an old bomber jacket. On the train ride back to Florence, that tiny truffle filled the car with an extraordinary scent, an intoxicating, slightly nasty and wholly seductive mixture of garlic and lilies and dirty socks.
Throughout the dinner that evening my father, who was in his 80s, kept opening his jacket to sniff. Indeed, as we crossed the Ponte Vecchio in Florence, he stopped a pair of tourists from Wisconsin. “You want to smell something special?” he asked, opening his jacket. “Smell this! Come on, smell it!”
Similarly, when I opened mail-order packages of fresh white Italian and black winter truffles, their scents permeated my kitchen. To preserve their alluring smell, I rolled them in dry paper towels and stored them in my refrigerator in a Ziploc bag. Every so often, I would open the frig door, stick my nose in the plastic bag, and inhale—like a delinquent kid sniffing model airplane glue in a paper bag for a cheap high.
Unique Therapeutic Qualities of Truffles
Apart from their spellbinding aroma, more recent scientific research is focusing on the therapeutic benefits of truffle consumption. Their biological potential includes “antioxidant, antiviral, antimicrobial, hepatoprotective, anti-mutagenic and anti-inflammatory activities.”
For my own part, two palpable bodily reactions would follow naturally from truffle consumption:
- A convivial euphoria would ensue around the dinner table. It would be easy to ascribe this elevated feeling of contentment to fine wines and well-executed truffle-based recipes, but that explanation would fall short. Isolating these euphoria-inducing ingredients, whatever they may be, would surely find a ready market in a society that values continually altered states of being.
- Eating truffles seems to promote deep (or slow wave) sleep. The profound health benefits associated with slow wave sleep are an object of increasing scientific scrutiny and validation. If there is some cause and effect here due to truffle consumption, that too would open up expansive novel product markets in an overly sleep-deprived culture.
My own privately-funded “research” findings illustrate the sheer impossibilities in gauging cause and effect in human food consumption. Without proper control group testing, my enhanced euphoric and deep sleep experiences could amount to nothing more than a glorious placebo effect in action. (But yet I don’t think so.)
If nothing else, truffles appear to stimulate our only two positive emotional affects—interest/excitement and enjoyment/joy. Conversely, none of our six negative emotional affects—anger/rage, disgust, dissmell, distress/anguish, fear/terror or shame/humiliation—is normally triggered by truffle consumption. The latter, however, cannot be said for the classic French pairing of black winter truffles with foie gras.
Truffles as Intangible Intellectual Property Assets
The dreamy qualities associated with and considerable monetary outlay in procuring truffles translates directly into tremendous intellectual property law asset value. Each classic cornerstone of IP law yields some compelling truffle industry insight.
Truffles and (Dying) Trade Secrets. The golden era of truffle consumption is now history. Their popularity reached a peak in the late 19th century. Trade secrets in truffle cultivation ruled the roost then (as now), but men who knew those secrets were decimated in World War I:
At the beginning of the 20th century, truffle growing and harvesting was cloaked in mystery, much as it has always been. The location of known truffle beds [a truffière] was a closely guarded secret known only to a select few. Truffles and their harvest were the preserve of men. * * *
Only on his deathbed would the truffle grower pass on to his sons the secrets of truffle cultivation, or even the places where they were to be found in the wild. As many truffle growers died in the trenches during the First World War, their secrets often died with them. Their families had great trouble even finding the truffle beds, let alone knowing what to do when they did.
For these and other reasons, commercial truffle production had all but collapsed by the end of World War II. By the 1960s, however, truffles again gained culinary ascendancy in the United States—as Julia Child taught a new generation of Americans about fine French cuisine; and a fashionable President John F. Kennedy and his wife Jacqueline embraced that food culture.
Protecting Truffle Authenticity through Trademark Branding. Given the cloaked nature of their cultivation, it should be no surprise that trademark law plays the most important role in purchasing truffles. Like myself, most Americans need to rely on middle-market purveyors, mostly located in New York, for their truffles. Developing a reputation for sourcing and delivering authentic truffles is the trademark’s function as a source-identifier. During my recent quest, Alma Gourmet consistently delivered excellent truffles to my doorstep.
Although not necessarily protectable under copyright law, recipes for truffle dishes can become synonymous trademarks for chefs. For example, Chef Paul Bocuse’s recipe for a black winter truffle soup—first prepared in 1975 to honor France’s then prime minister, Valéry Giscard d’Estaing—is the signature dish of his restaurants. Likewise, Chef Thomas Keller’s White Alba truffle risotto recipe is famous and can be viewed on the likes of YouTube.
Patenting the Truffle’s Active Ingredients. Scientists are coming closer and closer to identifying many of the active ingredients that contribute to the truffle’s aroma and functional food characteristics. To the extent the truffle’s medicinal qualities can be isolated and transformed into other novel products, patentable subject matter abounds.
That is just the tip of the patenting iceberg. Commercially cultivating truffles presents a myriad of agricultural conundrums well beyond the scope of this post. Solving any of those truffle production issues should result in patentable subject matter. Such patent applications would be well-girded against USPTO obviousness rejections based on the principle of “long felt need.”
Copyrights, Recipes and Food Memoirs. Truffle nostalgia metamorphoses onto the written page as copyrightable subject matter. One need look no further than this snippet of Richard Olney’s recipe for fresh egg noodles with truffles to understand the poetic voice to which truffles can give rise:
When the butter begins to melt, add the sliced truffles, sprinkle with salt, and pepper them generously, regulating the pepper mill to the coarsest grind. Sprinkle a bit of cognac over (not too much—its presence should not be suspected. Like the garlic, it is there to reinforce the truffle, rather than to assert its own personality.)
The butter should not even be allowed to come to a bubble—it is not a cooking process, merely a slow warming that permits the various perfumes to mingle and that of the truffles to expand.
Whereas rote recipe instructions and ingredient lists are generally excluded from obtaining U.S. copyright protection, Richard Olney’s perfectionist cookbooks—The French Menu Cookbook (1970) and Simple French Food (1974)—contain long, original recipe narratives that constitute prima facie copyrightable expression. In fact, Olney’s cookbooks were a driving inspirational force behind Alice Water’s Chez Panisse restaurant in Berkeley, California, and especially its early menus. She and Julia Child, among other food notables, would migrate regularly to Olney’s hermitage hillside dwelling in Provence to absorb cooking skills and tips firsthand from this reigning culinary genius of the latter 20th century.
While the short season for White Alba truffles has already come and gone, fresh black winter truffles are still coming into the fore. Like me, in eating my merry truffle way through original research for this post, you too can blow your seasonal food budget to kingdom come. In fact, my next shipment of Tuber melanosporum should arrive by Fedex in a matter of hours. These jewels of cookery will soon find their way into Richard Olney’s sublime recipe for Oeufs Brouillés aux Truffes Fraîches (scrambled eggs with fresh truffles).
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