Sometimes a single patent might seem silly, but even silly patents can provide much to chew on.
It started with Twitter:
And then a casual scan of the cited lawsuit:
According to the complaint filed by General Mills, sometime in 2005 the founder of Gellyfish Technologies, Benjamin Kwitek, contacted General Mills to discuss licensing his patent titled “Portable cinnamon roll and method for making”. Kwitek had jumped the gun, however, as his patent would not issue for six (6) more years.
In the meantime, Gellyfish kept busy suing companies such as Asus and Acer over other patents by named inventor Kwitek. For example, US Patent No. 6,336,614 titled “Conformable portable computer hand pads,” which claims:
I have always wondered why this kind of claim language isn’t a no substance signal for USPTO examiners; e.g., how would you have a keyboard that wasn’t a “keyboard housing supporting a plurality of keys for manipulation by a user”? Strip away the technical-sounding nonsense language and the USPTO issued to Gellyfish a patent on pads on a keyboard. Gellyfish then used that patent to sue companies like Lenovo, Sony, Intel and HP in EDTX. Kwitek, the current Director of Innovation at the University of Colorado in Colorado Springs, describes this patent as “haptic improvements for consumer electronic devices”.[1]
As I dug deeper, I recall that I’ve known of Gellyfish for almost a decade:
· https://patentlyo.com/patent/2011/07/reverse-bifurcation-1.html
But, back to portable cinnamon rolls. Kwitek’s patent application rightly met with a skeptical examiner, Jenna Watts. Examiner Watts rejected the claims, which like the eventually issued claims, amounted to nothing more than a cinnamon donut hole:
“Forming raw dough in a predetermined shape having a central pocket, wherein the central pocket is isolated from the exterior surface of the portable cinnamon roll”. A donut hole.
Examiner Watts’ rejected Kwitek’s claims as obvious. For example, Examiner Watts pointed to baked goods with cream cheese in the middle and noted that it would be obvious to someone of skill in the art, a baker, to create baked goods with sugar and cinnamon in the middle. It’s not even clear to me why Examiner Watts had to cite a patent. Certainly by 2005, it should have been plainly obvious that a baker would know how to create a cinnamon donut hole. Certainly Examiner Watts, with a Masters Degree in food science, was capable of making that call.
Not so. Kwitek appealed to the USPTO Board of Patent Appeals. The three-panel Board reversed Examiner Watts finding no reason to believe that someone of skill in the art, a baker, would find it obvious to take the cinnamon and sugar normally outside a donut, and place said confections inside the donut.[1]
Thus, Mr. Kwitek’s patent on “portable” donut holes (as if there could be any other kind) issued after 6 years of prosecution, in 2011.
According to the DJ Complaint, “In 2017, General Mills sought to expand upon the success and popularity of its Cinnamon Toast Crunch™ Cereal by introducing a microwavable product that incorporated the same flavors. In a blog post published by General Mills dated July 12,
2017, General Mills announced the Cinnamon Toast Crunch™ Bites product[.]” In essence, a frozen cinnamon flavored donut hole.
In the meantime, Kwitek continued to file continuations on his “portable cinnamon roll” patent. However, during the prosecution of the child patents, Examiner Watts found better patents and also turned to Google to find real-world donut holes. Kwitek abandoned each of his later applications in the face of this stronger art, art that also would have invalidated his originally used patents, but there is no mechanism for Examiner Watts to go back and reverse the issuance of the first “portable cinnamon roll” patent based on art found after its issuance. That said, Kwitek is unarguably in possession of this later-found art and should have put his first portable cinnamon roll patent aside.
He didn’t. Undeterred, Kwitek contacted General Mills in 2019, alleging infringement by General Mills’ Cinnamon Toast Crunch™ Bites, a product discontinued by the date of General Mills’ DJ Complaint. That is, Kwitek is seeking royalties on a patent that he should know is invalid against a product sold for less than 3 years. High times at Gellyfish.
Regardless, General Mills filed its DJ Complaint on September 1, 2020 and Gellyfish has yet to answer. Fortunately for Kwitek, it’s likely that none of these facts will be placed before a judge. General Mills likely filed the DJ to cease Kwitek’s threats once and for all and it will likely result in a rapid settlement. Which unfortunately simply allows the Gellyfishes of the world to continue their campaigns.
For example, Kwitek claims to own a patent on a pen grip that has “ended up selling more than 100 million units.”[2] But his EDTX lawsuits based on his pen grip patent (No. 6,447,190), resulted in defendants filing a motion for attorney’s fees and other sanctions. (See Case No. 2:13-CV-281-JRG.) Although the motion is sealed, Judge Gilstrap’s Order cites some noteworthy facts, including that Kwitek’s counsel relied on Kwitek’s “objectively unreasonable” infringement analysis and that said analysis was destroyed by Kwitek, twice. (See id., at DI 88.) Unfortunately, Judge Gilstrap did not award fees—a frequent decision that only increases the number of meritless suits—but it appears at first blush that the royalties on the “100 million” pens did not actually accrue to Kwitek. Leaving one to wonder what kind of “innovations” Kwitek is teaching the students at the University of Colorado.
Sometimes—I would argue often—the USPTO issues patents it shouldn’t. And even the silly-seeming patents end up consuming resources—time, money, emotional bandwidth—that should be employed in productive pursuits. This is a story of donut holes and cinnamon toast crunch. It’s also, unfortunately, the story our current patent system.
[1] https://communique.uccs.edu/?p=120511
[2] US Patent App. No. 11/249466. This prosecution history and other materials referenced can be found at https://www.dropbox.com/sh/h10uv5rxw0a9j3u/AAB16vElYtdabWn3qzBIdUWla?dl=0
