Sunday, February 24, 2008

Restaurants fight over patents

During the week of June 28, 2007, the New York Times' front page,
has an article on the growing IP lawsuits amongst restaurant owners,
in particular, patent, trademark and
trade secret lawsuits.

First - restaurants (along with cafes [i.e., Starbucks], and specific-food
stores [i.e. Dunkin Donuts]) are big business, especially chains and
specialty venues.  Like other businesses, they have their methods and
processes - recipes; their articles of manufacture - food items and
cooking equipment; system architectures - well, architectures; and
financial business methods.  There are over 1000 patents dealing with
restaurants and recipes.  And rightly so because all of these categories
fall within traditional boundaries of patentability.  Indeed, this area
of technology has its components:

   U.S. Patent 7,153,531
   Food component

   1. A food component in particulate form comprising: at least about
   50 wt. % of a bulking agent; and about 24 to 33 wt. % of a
   triacyiglycerol component having a melting point of about 100 to F.; wherein the food component has a water activity of
   no more than about 0.4; and the particulates have a sensory hardness
   value of at least about 6 and comprise an inner layer having a
   monolayer value at C. of no more than about 1.0 wt. %.

or a recent patent to Kraft:

   U.S. Patent 7,226,629
   Microwaveable grilled cheese and meat sandwiches and method of

   1. A microwaveable grilled cheese sandwich comprising toasted bread
   and cheese, the cheese being coated on all of its surfaces with an
   edible moisture barrier, the edible moisture barrier composition
   comprising from 1 to 35 weight percent of an edible microparticulated
   high melting lipid having a melting point of C. or higher
   and a volume average particle size of less than 10 microns; .....

That there are not more such patents is a reflection of the reticience of
patent lawyers to be more aggressive in helping such businesses learn more
about patents to then seek more patent protection. (Yes, what I really mean
is buy more copies of my book, "Patenting Art and Entertainment", and pass
them out to potential clients :-)  Amongst other reasons for such forms of
patents is that none of the above categories - methods, articles, systems
- belong anywhere within ten million miles of the copyright system, despite
the lies copyright lawyers use to pull such categories into the domain (it
is engineeringly obscene for extremely functional architectural plans to
be subject to copyright).

Which is why more architectural and food-related businesses are seeking
patent protection.  But here is the artistic-equivalence argument that
goes unspoken.  Everything related to food is part of the culinary, as
much a branch of the arts as any other branch.  If all of the culinary
arts are patentable, including articles of manufacture, why not all of
the areas of art?  There is no logic to some forms of art being partially
patentable (music, movies, etc. - no patents for articles of manufacture,
only method patents) while other forms of art are fully patentable (food,
sculpture, mostly anything 3D-ish) including articles of manufacture.
It is not justifiable within art theory, within science or engineering,
and within most patent caselaw.  So I argue that patent lawyers should be
more aggressive in bringing protection for all of the arts under the rubric
of what all of the arts are becoming - large engineered manufacturing

Back to the New York Times article.  It first starts out with a lawsuit
just filed in the federal district court in Manhattan by Rebecca Charles,
owner of the Pearl Oyster Bar in the West Village.  She is suing her
former chef, Ed McFarland, co-owner of Ed's Lobster Bar in SoHo.  The
article is not clear the exact IP types being asserted, but at least one
count involves a trade secret theft of Ms. Charles' recipe for a Caeser
salad which Mr. McFarland is now selling as "Ed's Caesar".  Ms. Charles
claims he got the idea from her to use coddled eggs and English muffin
croutons.  Also, it looks like there are some trade-dress charges as
well - paint colors, use of wheat-straw backed chairs, etc.

But she admits she got many of her ideas from earlier sources, for
example, that part of the design of her place was inspired by the Swan
Oyster Depot in San Francisco, and that the salad recipe was learned
from a long-gone Los Angeles restaurant.  Without a confidientality
argeement, though, she might find it hard to assert these complaints
in court, especially since McFarland is arguing back that he has his
own architectural and recipe designs and methods.

While many chefs are resistant to bringing more law into their kitchens
(partly because no one has ever explained the main facets of IP law to
them), others are embracing the patent system.  A quote from one
lawyer summarizes this well:

   Charles Valauskas, a lawyer in Chicago who represents a number
   of restaurants and chefs in intellectual property matters,
   called their discovery of intellectual property "long overdue"
   and attributed it to greater competition as well as the high
   cost of opening a restaurant.

   "Now the stakes are so high", he said.  "The average restaurant
   can be millions of dollars.  If I were an investor, I'd want to
   do something to make sure my investment is protected."

Sounds like the software industry in the 1990s.  As software became more
lucrative, the financial stakes higher, the inadequacies of copyright
more obvious, software patents took off, as business method patents are

   One of Mr. Valauskas's clients, Homaro Cantu, has applied for
   patents on a number of his culinary inventions, like a method
   for printing pictures of food on flavored, edible paper.  Mr.
   Cantu also makes his cooks sign a nondisclosure agreement before
   they so much as boil water at Moto, his restaurant in Chicago.

So are all aspects of all forms of art patentable, if most aspects of
most areas are already patentable?  Does Baker v. Selden, State Street
and Lundgren, and other decisions open up more areas of art and
entertainment to patenting?  As science and engineering extends more
and more into the design and production of art and entertainment,
treating a music rif no different than a transistor, should more areas
of art be brought into the patent system?  Will detailed descriptions
of new artistic methods and articles of manufacture help progress the
arts by facilitating technology transfer to the general public?  Is
the printed matter doctrine obsolete.  Is it unethical for the PTO to
assert a non-functional descriptive matter doctrine, when it doesn't
define "functional" or know anything about the sciences of the arts?
Yes, No, who knows?

What is strange is the general silence at patent law conferences and in
patent law journals, and at entertainment law conferences and in
entertainment law journals, to all of these questions.  Patents are
pending on movie plots, a potentially revolutionary development.  Yet
you would never know of this possibility of you go to these types of
forums.  And there are hundreds of thousands of unpublished pending
patent applications.  Who knows what boundaries are being pushed in some
of these applications.  Room for tons of speculation.  But silence.
Grow up folks (except those of you who are saying nothing publicly
because you are too busy helping your clients file patents in these