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Wednesday, 10 September 2008

Of pigs and centrifuges: the story can be told

In last Friday's pre-weekend pot-pourri the IPKat's friend Ronald Popma mentioned that he had found a Danish patent dispute that dragged on for a gigantic 28 years. Since his information on the dispute was only in Danish, which was not his native language (or the IPKat's), his curiosity was kindled. The good news is that, via the IPKat's friend from OHIM Nathan Wajsman, the secret of this case can now be told. Says Nathan:

"In 1980 Fritz Amstrup was a manager in a small slaughterhouse somewhere in Jutland. His company received an order from Japan for clean cow intestines, to be used for sausage-making. The traditional method of removing the fat on the outside of the intestine was to do so by hand, a time-consuming and expensive process. Amstrup instead adapted an existing centrifuge that had been used to clean pigs' stomachs, and the like, for this task. Apparently,running the centrifuge at 700 rpm for exactly 29 seconds resulted in clean (but undamaged) tripe. Amstrup then installed a timer on the centrifuge; the timer controlled a side door so that the clean tripe would be automatically ejected from the centrifuge after the magic 29 seconds. He applied for apatent on this device in December 1980.

The dispute really started in March 1981 when DAT-Schaub, a subsidiary ofDanish Crown (a big company that dominates Danish meat processing), objected to the patent application before the Danish Patent Office, on the grounds that the technology which Amstrup wanted to patent was not new and that centrifuges had been used to remove fat from tripe for several years (and indeed had been used for this purpose at DAT-Schaub since mid-1980). Amstrup however claimed that DAT-Schaub had copied his invention.

DAT-Schaub was able to produce brochures from centrifuge makers in France and Germany, dating from before 1980, in which this technique was allegedly described, albeit to clean other parts of dead animals. The dispute went back and forth for more than a decade. Then in 1992 the patent office accepted a somewhat modified patent, against which DAT-Schaubalso objected, on the same grounds as before: that the technology was not new and even the automatic time controllers had already been used on centrifuges since at least 1970, albeit less precise ones than that used byAmstrup.

The patent office, dismissing this objection, granted a patent to Amstrup in September 1993. In November 1993 DAT-Schaub appealed to the Patent Appeals Board (says Nathan, this is a made-up translation: the Danish name for this body is Patentankenævnet). In November 1996 the Appeals Board reversed the decision of the patent office and invalidated the patent, basically agreeing with DAT-Schaub that the only element in Amstrup's centrifuge, the automatic timer, was not sufficiently new to qualify as an invention. In its reasoning the Appeals Board also cited a decision from the EPO from 1992, in which it said:

"Mere automatisation of functions previously performed by persons correspond to the general trend in technics (sic) and cannot as such be considered inventive."

In January 1997 Amstrup re-submitted his patent application, but now more precisely defined. At around the same time he also brought a case against the Patents Appeals Board at Vestre Landsret, the second-highest court in the Danish legal system. Of course, DAT-Schaub also filed objections against the revised patent, but it was finally granted to Amstrup in June 2000 (I do not know enough about the technology of cleaning cow tripe, nor about the law, to tell you exactly what the revisions were).

In 1999 Amstrup dropped his original court case against the Appeals Board, apparently being satisfied with the prospect of having the revised patent granted (it must have been pretty clear already then that he would win the dispute at thePatent Office).

Left: this is what a person looks like after 28 years of patent litigation ...

In September 2000 DAT-Schaub appealed against the revised patent to the Patent Appeals Board, again claiming that Amstrup's invention was not new and did not meet the threshold for inventive step, the revised patent was more extensive (in the protection it provided) than the originally rejected patent and that it was basically a rehashed version of the old patent since it was really about the same device.

The Appeals Board once again sided with DAT-Schaub, and in April 2002 the revised patent (no. 171837) was invalidated. Again the grounds were that thei nvention was not sufficiently new, as demonstrated by German and French products that existed before 1980, for essentially similar purposes (cleaning fat off pig guts instead of tripe etc.). The Appeals Board's decision was once again appealed to Vestre Landsret (in June 2002), which upheld the decision (i.e. the rejection of Amstrup's patent) in November 2005. Amstrup in turn appealed to the Danish Supreme Court, which upheld the lower court's decision in August 2008. The case is thus now finally over.

In the popular media the case is very much portrayed as the little guy who fought the big bad company which stole his idea for all these years and finally lost. In one of the stories on DR (Danish Radio) he claims that the case had cost him his entire life savings, 1.7 million DKK (about 180,000 pounds)and "several marriages" -- that is as precise as it gets!"

Nathan adds that, as a casual observer of Denmark (having not lived there since 1983 but visiting it frequently) he feels that the truth is somewhere in the middle. As it appears, Amstrup's idea was clearly not as groundbreaking as he claimed, but DAT-Schaub did look as though it had stolen it from him.

Right: how to make a cat sausage

Nathan continues: big Danish companies in the agribusiness sector do tend to behave in a somewhat robust manner towards smaller competitors. Finally, most of the detailed information of the history of the case up to 2002 is available, in Danish only as it appears, in the official journal of the (now renamed) Danish Patents and Trade Marks Office.

How to make sausage skins here
How to make sausages here
Danish Bacon here
English Bacon here

2 comments:

Anonymous said...

Considering the parameters being so specific (700 rpm for exactly 29 seconds), couldn't this be argued on grounds of surprising effect?

I cannot tell if the cited French patent was this exact, yet as it was not automated I would not be surprised if it claimed a wide span in processing time.

The Danish PTO does appear to have accepted precision as central in its decision of 1981-03-25. Seems however the basis for amendments were a bit thin on the ground, too hasty patents drafting perhaps?

The opposition history makes me wonder about the judgments at the Danish PTO, they seem easily persuaded by any party.

Kasper said...

It is central to Fritz Amstrups patent that the centrifugation of pig happening in a specific period of about 110 seconds and by the specific temperature for slaughtering. The result is that the intestines are cleaned of fat and not "threadbare" and perforated. Therefore, they are appropriate for sausages.

In one of trials in slaughterhouses Tican in Thisted, the DAT Schaub, as if the process was carried out with a default of 240 seconds with cold casings. There were attempts to turnaround the 200, 220, 240, 260 and 280 seconds. Here was the result that all the casings were "threadbare" and perforated.

On the background the valuer (skønsmændene), "that as far as degreasing the extremity of the grease (fedtender) and shives (tyktarme) is not possible to register a quality as a function of processing time."

The conclusion and trying to lay the basis for it, is, according to Fritz Amstrup and his lawyer so far from the truth that is the basis of a report to the police because DAT Schaub therefore deliberately tried to mislead the valuer.

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