Would You Like a Patent Lawsuit With Your Meal? | Commentary

As members of Congress prepare to re-open the debate on patent reform, they would do well to consider they have probably recently eaten food. They might have looked up recipes or pictures of that food online. They may even have counted the calories in that food, or used a website to help figure out how healthy their meal was.

And they just might have aided and abetted a highly illegal act of infringement of a United States patent.

That is the claim of a company called DietGoal LLC, which owns a patent on a “computerized meal planning interface” and has sued food establishments from Arby’s to Whole Foods. And what exactly did DietGoal “invent”? To mildly paraphrase the patent: a user interface, a selection of foods you can arrange into meals and a picture menu showing those meals so you can select one based on your health needs.

In other words, a computer program that helps you pick your dinner.

This sort of patent silliness is nothing new — you may have heard of the infamous patent on a “Method of Swinging on a Swing.” But research a colleague and I conducted reveals how prevalent this silliness is, and how serious an impact it has on our economy.

Patent law theoretically has a way to keep this absurdity at bay: a legal principle that “abstract ideas” cannot be patented. “Abstract idea” is shorthand for basic concepts and things people do all the time — “longstanding” or “fundamental” practices, says the Supreme Court.

But lawyers cleverly found ways around this prohibition on patenting ideas. They built up a wall of law suggesting that an abstract idea could be patented simply by adding a general-purpose computer to the patent.

And this retaining wall held up for almost two decades, until the Supreme Court saw through the strategy. Just this summer, the case Alice v. CLS Bank declared that an abstract idea could not be patented merely by mentioning a general-purpose computer.

Once Alice broke the wall, much spilled out for the world to see. Following Alice, the U.S. Patent and Trademark Office conducted an audit for any patents on abstract ideas that were about to be granted. Examiners found 830 cases and withdrew them from the grant process.

We obtained the list and found patent applications on:

A personality quiz for whether you and your pet are the same “personality color” (I’m orange, apparently.) (2009)

Not overeating by weighing your food and eating slowly (2009)

Targeted advertising, Google Adwords–style, to hospital patients based on which organ they are having surgery on (2011)

Blackjack scored using Baccarat scoring (2012)

Displaying a virtual spinning roulette wheel (2011)

Showing happy pictures if you have enough gas in your car (2011)

Remember, these were on the verge of becoming real, enforceable patents.

I have nothing against these ideas. Many were likely the seed for a useful product or new business. But they are just ideas, meant not to be monopolized but to be shared and grown into products that all can enjoy. Baccarat-blackjack is for two kids in camp to devise, not for United States law to enjoin.

Half of the solution is Alice, which stops such patents from being issued. But half is dealing with patents already out there. The Patent Office audited only a five-month window of patent applications, and already identified hundreds of problems.

Speculators find these patents and exploit them because businesses, like those restaurants DietGoal sued, cannot afford the expense of litigation, which can cost millions. Patents thus become toxic weapons leveled against industry in a shotgun approach intended not to succeed on the merits but rather as a contest of wills in the courts.

This is why Congress last year focused on reforming patent litigation to protect against abusive practices. It is why the next Congress will almost certainly take up the issue again in January.

It is to ensure these patents on abstract ideas don’t create problems for real people. It is to motivate patent owners to lean on the merits of the case rather than the persistence of lawyers. It is to trim down our patent system, now bloated with unnecessary patents and lawsuits, to promote invention rather than taxing this trait.

And that’s a diet goal to support.

Charles Duan is the director of the Patent Reform Project at Public Knowledge.