Friday, October 16, 2009
Man Walks Into a Bar
A leading patent attorney who is deeply involved in the In Re Bilski case and has written an amicus brief on behalf of one of his clients advocating that business methods that don't result in a transformation - things that can be done with pencil, paper, a calculator and a brain - shouldn't be patentable. He can cite plenty of patents and pending applications that he believes are ridiculous but since we were chatting at the end of the day and he was heading to Happy Hour with a colleague, he offered the following cocktail business method story.
He's decided to litigate the hypothetical Man Walks into a Bar business method patent. The patent describes a business method where a man walks into a bar and interfaces with the alcoholic beverage dispensing system. The interface supports input of specific cocktail configurations based on published and customized ingredient lists. The alcohol beverage dispensing system's component selection device selects appropriate alcoholic beverage subcomponents from the alcoholic beverage inventory control system and executes configuration specific combination instructions to assemble the components according to the specific cocktail configuration. When the configuration process, which may involve introduction of other supplemental components to optimize the specific cocktail configuration, the specific cocktail configured by the alcoholic beverage dispensing system is rendered into an appropriate container based on its content, measured in size and based on ornamental accessories required for the specific cocktail configuration and output by the alcoholic beverage dispensing system.
The method may also include rendering alternative specific cocktail configurations wherein the alcoholic beverage subcomponents may be non-alcoholic subcomponents including but not limited to ice, limes, umbrellas or pink flamingo shaped stirring utensils.
While I was contemplating an after work adult beverage he added the following:
Under Bilski, a method is patent-eligible if “ ‘(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. If the apparatus is a bartender and the article is a fine bottle of tequila, the transformation occurs when the tequila is combined with lime and transformed into a cool margarita.
So, the apparatus is the bartender and the transformation is the combination of ingredients and the transformation is the shaken not stirred and dispensed into the glass. It's a stretch but he makes his case that business method patents have gone too far.
Under this hypothetical business method, every bartender taking an order, mixing a drink, and serving it in a frosted glass with a pink flamingo or an umbrella would be infringing the Man Walks Into a Bar Patent.