And We Wonder Why We're Fat: Patents in the American Kitchen (And Claim Limitation Law)

Articles have been swarming this Kat’s inbox recently about disputes over patents on eggs and dough.  Of course, home cooks in the United States are already terrified that they are risking an infringement lawsuit from the owner of the patent on toast every time they make breakfast, and violating the rights in the patent on the peanut butter and jelly sandwich when they pack their kittens’ school lunch.  (They are not, of course, but these kinds of patents do give the critics a great deal to mew about).

 Recently, though, food patents seem to be shooting up like arugula in springtime.   First, an infringement suit ended in an award of $5.8 million in damages for infringement of egg pasteurization techniques in the case of Michael Foods, Inc. v. National Pasteurized Eggs, Inc.  Then, a few days later, the Federal Circuit considered and rejected a recent patent claim in dough in In re Jason Arthur Taylor et al. (Fed. Circ. 2012-1006). One can only wonder if, had this patent been successful, it would have had to have been claimed prior art for the PB&J patent referenced above.



If you are a skeptic of patents in basic cooking ingredients, the rejection of Jason Taylor's dough patent might initially bring some relief.  Unfortunately for such skeptics, however, the rejection of the patent had nought to do with any inherent unpatentability and everything to do with a prior patent owned by Nabisco, although the applicant claimed that the new patent was different in that this particular dough could be used to make “low-calorie, palatable foods.”  

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This may well have been true, as this particular dough was flour-free, and instead was a  “mixture of cellulose, hydrocolloids (such as methylcellulose, xanthan gum, and hemicellulose), and other ingredients.  Applicants even were so honest in their claims as to state that the low-calorie “doughnuts, breads, crackers and cakes” that could be made with this miracle dough were “nearly, though not completely as savory and satisfying as their traditional, full-calorie counterparts.”  Unfortunately for applicants, the Federal Circuit agreed with the Board  of Patent Appeals and Interferences, that the terms “low-calorie” and “palatable” which were found in the preamble were not limiting, because they “merely reflect intended uses or purposes without imposing any structural limitation on the claimed compositions.”   In U.S. patent law, says the Federal Circuit, a preamble limits claims only if it "recites essential structure or otherwise 'gives life, meaning, and vitality' to the claim."  As such, the patent was not sufficiently limited and read upon a prior patent for cellulose dough owned by Nabisco, maker of a substantial percentage of the snacks in the U.S., including Ritz Crackers® and Oreos®.  One does have to wonder how much cellulose dough Americans are consuming.  (Is it cellulose when it’s in the cookie, and cellulite when it’s on our thighs?)  

The decision in In Re Jason Arthur Taylor is nonprecedential, leaving the field wide open for new inventors of cellulose dough to find a way around Nabsico’s patent.

In all fairness, this Kat’s grandmother cooked with Crisco, and probably would not have told her brood never to eat foods with ingredients they couldn’t pronounce, but other grandmothers have been saying this for generations, and it seems like good advice.  Perhaps now the advice should be, “if it’s patented, don’t eat it”?  

Except for toast, of course.