(Mis)Uses of Technology

by Mike Masnick

No, McDonald's Has Not Patented Sandwiches (Yet)

from the feel-free-to-keep-making-'em-for-now dept

Last month, while writing about the growing trend of chef's wanting to claim intellectual property rights over their meals, we joked in the headline that one day, perhaps, McDonald's would be sued by someone claiming to have invented the bacon cheeseburger. Perhaps we should have flipped that around. Plenty of folks thought of us and have been submitting this story that's been getting some attention supposedly about McDonald's trying to patent some sandwiches. Luckily, it's not as bad as it sounds. First of all, the patents in question are all applications, not granted patents, so they may never get anywhere. Second, it's not about patenting the sandwiches, but patenting machines to put together the sandwiches quickly and in a uniform manner (McDonald's specialty). I've found three different applications that seem to be what's being discussed here, and it's clearly about a tool, not the sandwich itself. Now, whether or not you believe a sandwich making machine should be patentable is an entirely separate question. However, the fear that sandwiches might be patented certainly isn't as ridiculous as it might sound. One of the more famous (and more ridiculous) patent lawsuits often used to demonstrate how screwed up our patent system has become is the case where Smucker's tried to stop a small grocery store from selling crustless peanut butter and jelly sandwiches, because they claimed the patent on such things.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    misanthropic humanist, Nov 27th, 2006 @ 12:27pm

    Must get worse

    Things have to get worse before they can get better. It's an old saying that contains a lot of truth. The situation with intellectual property is already passed the absurd and surreal, but the mentally ill lawyers and corporate drones have backed themselves into a corner where have no choice but to continue raising the stakes higher and higher.

    This is a good thing. There is no outcome now more certain than the complete collapse of intellectual prperty as a concept. But it will take time and many more ridiculous stories of legal abuse before the tipping point is reached.

    I think we've reached the point where we can stop taking these stories seriously now and just sit back and watch the slow inevitable trainwreck.

    Please, please, McDonalds, try patenting sandwiches. More fuel for the fire that wil consume you.

    reply to this | link to this | view in thread ]

  2. identicon
    PhysicsGuy, Nov 27th, 2006 @ 1:22pm

    Personally, I see nothing wrong with filing a patent for a machine that makes sandwiches... perhaps now I will get my order in a timely, non-abstractly constructed (don't question this, if you ever saw some of the sandwiches I've gotten from them, you'd understand this) manner.

    The Smuckers thing however... well, that's just hilarious...

    reply to this | link to this | view in thread ]

  3. identicon
    ehrichweiss, Nov 27th, 2006 @ 1:31pm

    well..that's ONE approach I guess...

    They figured out that they can't copyright the actual recipes so they want to use their muscle in other areas.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Nov 27th, 2006 @ 1:36pm

    Re: Must get worse

    I just patented the idea of putting spaces between words. Pay me my royalties, bitch!

    reply to this | link to this | view in thread ]

  5. identicon
    wolff000, Nov 27th, 2006 @ 2:08pm

    Not A Problem

    I see nothing wrong with McDonald's patenting a machine they created. That is exactly what patents here intended for. Not abstact ideas that just make sense. Amazon I am looking at you, silly one click check out patent, what a joke; but I digress. I whole heartedly agree with the first post. The more absurd patents get the more likely we are to have reform. There is another old saying that should be remebered as well, "The squeaky wheel, gets the grease." Just because the current system will inevitably fail it doesn't mean we should stand idly by and just watch. Complain and do it loudly to your congress and senate reps. If enough people say something they will act. Despite what a lot of people think, our electred officials do listen to the people. I have worked within the sytem and it has created change for the better.

    reply to this | link to this | view in thread ]

  6. identicon
    Tyshaun, Nov 27th, 2006 @ 2:24pm

    Patenting sandwiches?

    This is where my legal ignorance comes into play but how could a company go about patenting two all beef patties, "special" sauce, lettuce, cheese, pickles, onions, on a sesame seed bun?

    Seriously, is a patent the appropriate application to protect something like a Big Mac from being copied by other restaurants or is something else like a trademark used. You could make the arguement that a hamburger sandwich shouldn't be patentable but I think a Big Mac is unique enough to have some sort of legal protection.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Nov 27th, 2006 @ 2:38pm

    Patents are fine for ORIGINAL inventions. A new machine that assembles sandwiches could be considered original. A crustless PB&J could not be, because it's been done my millions of people for as long as things like peanut butter and jelly have existed.

    Also, any burger a fast food restaurant can pump out should not be allowed to be patented. I guarantee you that someone somewhere has created a burger or sandwich just like any ones the fast food places can come up with, so again, not original work. You see one burger, you've seen 'em all. Assembling bread, meat, cheese, various veggies, and common condiments together in different ways is not original in any way and should never be allowed to be patented.

    Now, if they came up with a new special sauce or something that has an original recipe, that could be patented and/or copyrighted so that a competing restaurant couldn't use the same recipe and pass it off as their own creation. I believe that's fair use of the patent system. The whole idea of a patent is to give people credit for their original inventions, so the idea of "original" work needs to be re-examined before any improvement will be seen in this system.

    reply to this | link to this | view in thread ]

  8. identicon
    misanthropic humanist, Nov 27th, 2006 @ 3:38pm


    Thosearen'tspaces, I used so-seeyouincourtsucker:)!!

    reply to this | link to this | view in thread ]

  9. identicon
    misanthropic humanist, Nov 27th, 2006 @ 3:55pm

    Re: Patents are fine for ORIGINAL

    Yes, I agree. In fact a sandwitch making MACHINE really would be worthy of a patent in this case. I can see why they would want to do it too. Not really to protect the invention of such a machine, because it's not that original - there are other sandwich making machines already... but to protect the exact product of that machine.

    "McDonaldization" is about efficiency through standardisation. Even the diameter of the bread rolls and average density of the sesame seeds is finely controlled. In a way that represents a product, which although it cannot be patented or trademarked they want to protect by patenting the process of production. Otherwise competitors could offer the exact same standard product that looks, smells and tastes like a McSandwich.

    So for a machine with very well defined parameters, the argument holds. Notwithstanding that my opinions on the circus of IP, the twisted or currupt lawyers riding the bandwagon and the impending self destruction of the whole mess, still stands.

    As far as re-examining "original" work goes, I think you have hit the nail. The problem in my view is that the patent offices are either staffed by idiots, or not adequately staffed at all. They do not meet even the most basic reponsibilities of research. Probably, in reality it's just too expensive and time consuming to do this. So, a way round this is to redefine the contractual responsibilities in a patent such that the applicant does all the research and gives a sworn affidavit that the invention is original, has been researched and no prior art exists to the effect that the patent is immediately voided if challenged by good evidence of prior art. That doesn't happen now, hence the opportunity for frivolous filing by companies who know nobody can afford to challenge.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Nov 27th, 2006 @ 7:52pm

    Re: well..that's ONE approach I guess...

    As far as i can tell from reading the applications, it's some sort of kitchen gadget to allow you to assemble the sandwich innards while the bun is being toasted.

    It was probably created as part of the "toasted deli sandwich" project, which was tried in some restaurants but ultimately shut down.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Nov 28th, 2006 @ 7:46am

    This article heading is misleading. sure, the patent system was made for original works. a machine to complete a task fits the descritiption. a work of food normally isn't.

    now, if CK can patent a fragrance, i'm pretty sure a dressing can be pantented. can the way a sandwhich is made be patented? doubtful, but that could be trademarked.

    working for Mcdonalds for 6 years, (highschool/college) the company is all about uniformity/standards. however when you get down to the store and/or employee, not much time is spend on uniformity. when you need to make 5 sandwhichs in under 35 seconds, the process gets sloppy. the crew does it so they don't get yelled at for being slow. the managers demand fast service, to get the food out fast, or else they get yelled at by the store owner/district managers....but that's where the customer service comes into play, wanting both speed and uniformity. so it's a mixed signal. a machine to make uniform burgers would be nice, helps with cleanup, and everything. i kept telling my "co-workers" in 10 years there will be a fully automated mcdonalds somewhere. well, maybe they have 1 or 2 people making sure deliveries are ok, and restocking the machines when they are empty, but other than that, you'll place your order (via sheetz touch screen) then your order will be on a conveyor belt, and "assembled" wait, this is my idea now. does this mean i can sue mcdonalds when they do it?

    in other news, did you hear about panera bread suing some town in ohio, becaue they had a "sandwich exclusivity" clause in their zoning contract? meaning the shopping plaza they located at, they were the only store that can sell sandwiches? turns out Qdoba moved in, and panera sued because they claimed a burito was a sandwich. and a lengthy court battle was creaded over the definition of "sandwich" (qdoba won btw)

    reply to this | link to this | view in thread ]

  12. identicon
    Juan Ponce de León, Mar 13th, 2008 @ 3:25am

    Grilled Cheese Sandwiches

    I really hope not, especially Grilled Cheese Sandwiches.. They don't make them yet, but someday... Some day they will!

    reply to this | link to this | view in thread ]

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