A couple who had a pruchased a home from Colonel Sanders in the 1970s, were looking through boxes in the basement and discovered, what they believe to be, the secret recipe of eleven herbs and spices.
The KFC company is now suing the couple, complaining that they had tried to get KFC to buy the documents. The couple denies this.
How will a court view this case? Does the company own the recipe even on documents owned by someone outside the company? Is it illegal for the couple to offer to sell the recipe to KFC? Hypothetically, could the couple have published the recipe legally or sold it to a competitor?
The biggest thing that jumps out at me is, they bought this house 30 years ago? And they’re just now getting around to looking in those boxes in the basement? My “oh, come on” alarm just went off. Normal human beings, when they move into a new house that they’ve just bought, immediately go through what the previous occupants left behind in boxes. It might be valuable–or it might be full of bugs. So, either way, you get rid of it, quick.
Normal human beings, when they move into a new house that they’ve just bought from a very famous rich person, immediately go through what the previous occupant left behind in boxes. It might be valuable. Period.
I don’t blame KFC for coming down hard on the Settles. It looks to me (I’m such a cynic) that they probably were trying a “Hey, buy this from us or we’ll sell it on e-Bay, and then you can go sue whoever buys it, instead of us.”
I had tested the link and it took me straight to the story. I forgot that it may not work for those who don’t already have it cached it.
Hmmm, if you’re correct, then this may be a really interesting court case. The couple could be quilty of fraud. However, to prove it KFC may be required to reveal the recipe to the court.
I’m still curious how it will play out if they truly did find the recipe in an old box. I assume the law treats a recipe like a trade secret. If you take the recipe from the company, it’s theft. I’m curious if it’d be possible to still steal the recipe if you take it from a source outside the company. Or if the company can somehow lay legal claim to all of the Colonel’s paperwork related to the company. Or if the “possession is 90% of the law” rule applies here.
IANAL (heck, I’m not anal either, more like IORAL), but unless KFC has a patent on the recipe, they’re fucked. Getting a patent would, of course, require that they reveal the ingredients and risk having their application for renewal denied in X number of years (I can’t remember how long a patent lasts nowadays, what with Congress suckling the intellectual property teat and all).
Coke has never patented their secret formula, either, for the same reason.
Patents cannot be renewed. You’re thinking of trademarks. (IANAL either, but I am registered to practice before the Patent Office). I don’t think you can patent recipes (although I could easily be wrong), but you can patent cooking techniques. Here is claim 1 from U.S. Patent No. 6,177,111:
The bolded part appears to be the point of novelty from my brief review.
[sub]This post does not represent legal advice; consult a patent attorney or agent if you have invented the perfect recipe; etc. etc.[/sub]
My recollection is that you can’t patent (or trademark) a recipe. The only way to keep a secret recipe secret is to not tell anyone. As per the previous post, you can patent a method of cooking (Col. Sanders did just that for the pressure-cooker method of preparing his chicken), but the combination of ingredients is only as secret as you keep it. Anyone can put the recipe for chocolate chip cookies in their cookbook without getting sued by Nestle’s.
William Poundstone in one of his “Big Secrets” books went around and got some samples of the coating mix (he took out ads near college campuses asking to talk to people who work at KFC) and submitted them to a food analysis lab.
(Spoiler ahead, don’t read if you are really caught up in the Mystique Of The Eleven Herbs And Spices)
Results? Flour, salt, pepper and MSG. That’s it. Mr. Poundstone’s thought was there might originally have been 11 herbs and spices but the folks who bought the Colonel out did away with the stuff that you couldn’t really taste. Who knows, maybe that couple has found the original recipe?
I’d heard about the Poundstone “study” before and it’s always seemed blindingly obvious to me. Anyone who’s ever used herbs and spices could tell that there aren’t any to speak of in KFC. Herbs have very distinctive flavors and one would stand out–let alone 11.
I asked a KFC question here a couple of years back. The answers i got told me that it’s not the recipe that makes it distinctive, it’s the cooking method. (The reason folks don’t just copy the KFC flavour is because they want to sell their chicken on its own merits)
So if they do have a KFC recipe, KFC don’t care. They’re rich enough as it is, and people can discover the true ingredients in any number of ways if they wanted to.
Going back to the OP, the situation would be governed by Kentucky’s trade secret laws. The “definitions” section of Kentucky’s trade secret act reads as follows:
It seems pretty clear to me that finding a recipe in a basement does not qualify as “misappropriation” of a trade secret as defined by the above code section, since “improper means” were not used to discover the secret.
My WAG? KFC knew they held a losing hand in this litigation. If they continued to fight it out in court, they only add legitimacy to (and give free publicity to) the claim that the found recipe is the Colonel’s actual recipe.
What to do in that situation (assuming the recipe is genuine)? Either:
**(1)**Cave in and pay hush money to the defendants; or **(2)**Do just what KFC did: Issue a press release denying that this is the actual recipe, thus de-legitimizing it (at least in some eyes) and drop the doomed lawsuit.
Looking more closely at that statute, KFC might have been able to sustain a “trade secret” lawsuit under Section 365.880(2)(b)(3), which defines misappropriation to include disclosure of a trade secret by a person who
So if the finders hadn’t “materially changed their position” before KFC swooped in, KFC could still protect the recipe as a trade secret. Which begs the question: What constitutes “materially changing one’s position?”
Oooo, this is fun! So KFC dropped the suit 'cause it’s not the Right Stuff? I’ll bet the relief at Headquarters is overwhelming.
So the Settles went to a great deal of trouble to concoct this fraud–made their best guess as to what the secret ingredients were, found an old diary, probably labored for hours over the other “entries”, planted the story with the media, went to all the trouble of contacting KFC and having to go down to the courthouse, and for what? Nothin’. They got the ingredients wrong. Better luck next time, kids.
What are the chances they’ll at least get 6 minutes on 20/20?
1964 was the year the Colonel sold out. There would have been lots of personal information available about him in the papers, enough to enable the Settles to put little personal tidbits in the “diary”, things that “only the Colonel himself would know”, initials of loved ones and stuff like that.
Matt Lauer on the Today Show this morning asked about that when interviewing the family and a KFC spokesperson, and suggested a taste test. The spokesperson consented, even said KFC would supply the chicken, so maybe in the next couple weeks the Today Show will prove whether the recipe is the real McCoy or not.
Having spent several of my teenage years working at a KFC, I learned much about the preparation of the famous chicken. The method of cooking is not a big secret, it is fried in very hot oil. What I do remember is that the “11 herbs and spices” came in a ready-made packet. No minimum wage worker was gonna get that secret.
What I always wondered as I slaved away in the prime of my youth was: Could I snatch a packet of herbs and spices and have it analyzed in a laboratory?
Perhaps this your ticket to easy street: Get a job working nights at your local KFC, steal a packet of “secret ingredients”, have them chemically analyzed and become a millionaire in a arduous legal battle!
I think most trade secret legislation deals with situations where persons come into knowledge of such secrets through the course of their employment; it’s designed to keep them from taking it with them, or give their former employer recourse if the turncoat spills the beans.
Keeping a process etc. a trade secret in a different sense is the opposite of getting it patented. By patenting an invention, you also have to disclose it, in return for doing which you get a time-limited monopoly. After the term of the patent expires, it’s open to anyone to make your widget. If you want to maintain a monopoly forever, you try and keep it a secret, and don’t patent it. But if someone reinvents your wheel, tough cookies.