Wednesday, November 29, 2006

Rest Easy, McDonald’s Isn’t Trying to Stop You from Making a Sandwich

A story about how McDonald’s Corp. is seeking a patent on the “method and apparatus for making a sandwich” seems to have caught the fancy of newspapers, blogs, and legal listservs in the U.S. and England.

The item has prompted overly-broad statements like “McDonald’s wants to own the right to how a sandwich is made” (U.K Metro) and “The next time you’re stacking a pastrami hero, better make sure McDonald’s isn’t watching—they’re [sic] trying to claim rights on how to make a sandwich” (The New York Post).

The Wall Street Journal’s Law Blog” wasn’t above poking fun at McDonald’s U.S. and British patent application and its claims relating to the “simultaneous toasting of a bread component” and the insertion of condiments into the sandwich with a “sandwich delivery tool.”

Even members of the ABA Forum on Franchising’s listserv took the occasion to bemoan the expansion of “business method patents,” the examination backlog at the Patent and Trademark Office, and the lack of proper training of patent examiners.

This is all good fun, but a close reading of the Abstract of the 55-page patent application indicates that McDonald’s patent claims are not that unusual. The claimed invention relates to (1) “the pre-assembly of sandwich components and simultaneous preparation of different parts of the same sandwich” and (2) a sandwich assembly tool “useful in the preparation of a made-to-order sandwich.” The tool has one or two cavities for garnish. Under the claimed method, the “bread component” is placed over the tool, and the tool and bread component together are inverted to deposit the sandwich garnish onto the bread component. The strangely-shaped tool is described in great detail.

Methods for making a variety of sandwiches—from subs and deli-style sandwiches to “cocktail sandwiches” and hamburgers—are expressed in painstakingly-specific terms.

Despite media reports, McDonald’s is not intending to prevent anyone from using previous methods for making sandwiches, the franchisor told Metro. Such a patent would not retroactively apply to previous methods in any event.

“They might have a novel device, but it could be quite easy for someone to make a sandwich in a similar way without infringing their claims,” a spokesman for the British Patent Office pointed out.

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