SHOPALOTTO PATENT DENIED; CEREAL PATENTING HITS THE STATES

1 Notalotto luck for Shopalotto

Butterworths' All England Direct online subscription service has just thrown up this little decision from Mr Justice Pumfrey in the Patents Court: Re Shopalotto.com Ltd.

Shopalotto applied to patent a computer apparatus configured to provide a lottery playable via the internet. The Patent Office refused the application, holding that it was excluded from patentability under s.1(2)(d) of the Patents Act 1977 (which has broadly the same effect as Article 52 of the European Patent Convention) since it was only a presentation of information "as such".

Pumfrey J dismissed Shopalotto's appeal. He held that

* in determining whether an invention was excluded from patentability under sections 1(2)(c) and (d) of the 1977 Act (computer programs and presentations of information as such), the court had first to determine what the inventor had contributed to the art over and above a computer operating in a new way as a matter of substance. Then it had to decide whether that contribution lay in excluded matter or whether it consisted in a technical contribution or effect. The contribution had to be considered as a matter of substance so as, for example, to prevent patents being granted for such things as novel computer programs on a carrier such as a compact disc.

* the physical under-pinnings of the claim were a general purpose computer programmed to provide a web-server and access to the internet. There was no contribution to the art outside the provision of the various pages to any person suitably equipped to view the pages provided by the server.

The IPKat can't help feeling that applicants in these cases are like moths dashing their wings against the candle. There is no way they can succeed util the law is changed, however they try to disguise their inventions. Merpel adds, at least Patent Office practice has proved to be remarkably consistent over the years in detecting the flaws in software-related inventions that make no contribution to the art.


2 Cereal patenting hits breakfast tables

The IPKat nearly choked over his muesli when he read the latest patent horror story from the US. A patent has been filed for a breakfast cereal business format by Chicago-based Cereality. The idea is that customers at outlets of the Cereality Bar and Café can mix more than 30 brands of cereals to suit their personal taste and either take the resulting mix away or add milk from a "Moo Machine" (unrelated to the Swedish Moo Machine depicted below) and relax on a sofa.

Optional extras include chocolate and strawberry flavouring for the milk and toppings that range from bananas and nuts to sugary "Pop Rocks". Counter staff ("cerealogists") wear pyjamas as a uniform, while the café plays popular Saturday morning cartoons on overhead television sets to complete the experience. Many of the customers are apparently homesick students, whose diet consists almost entirely of LUCKY CHARMS or FROOT LOOPS.

A legal battle has commenced after the opening of the rival "Bowls" café in Gainesville, Florida and a similar restaurant in Miami called "The Cereal Bowl". Lawyers for Cereality have submitted a 40-point claim to the United States Patent Office, covering in detail how the company makes and markets a bowl of cereal. Supporters of the rival cafes claim that the legal moves are a crude attempt to bully them out of a rapidly growing business that could one day match McDonald's or Burger King. They include members of Florida Free Culture, a student group calling for the repeal of intellectual property laws, who have launched a "Cereal Solidarity" campaign to fight the patent application. Says their leader, Gavin Baker:

"the issue isn't just about cereal but something more fundamental. It's whether people should be able to claim an exclusive right on mundane ideas any eight-year-old could think of. When someone is trying to take out a patent on mixing cereals and adding milk, that is wrong".

Although Cereality has three cafes, it plans further expansion next year, selling dozens of franchises across America and eventually, it hopes, Europe. The chain was conceived by David Roth and Rick Bacher who say they came up with the idea after meeting a businessman who kept COCOA PUFFS in his briefcase as a snack.

Cereality says it is only trying to protect its brand image and is not attempting to put competitors out of business. Its application covers everything from the uniforms and the kitchen-cabinet display area to the way the cereals are mixed, described as "placing the first and second portions of the competitively branded, packaged food products together in a container". Copies of the patent application have been sent to rivals with a warning that any infringement could lead to triple damages.

Assuming that this information is correct, the IPKat is appalled at the abuse of the patent system as a means of securing brand protection. He also speculates as to how the doctrine of equivalents will be applied to variants launched by competitors.

What Saddam Hussein thinks of FROOT LOOPS here