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Beware Infringing the Beer Dispensing Patent!

By Gene Quinn on October 29, 2013

It has been a while since I have seen an issued patent that made me want to jump out of my skin, but earlier today as I was sitting at my desk working, the patent search firm I use — Walsh IP — contacted me with a truly bizarre patent that they stumbled across.

Take a look at U.S. Patent No. 8,240,155, which relates to a method of presenting beer. Actually, the invention is a method for serving beer from a font and includes chilling a beer glass and then dispensing the beer into the glass to create a head of foam on the beer.

Claim 1 of this actually issued patent recites:

1. A method for serving beer from a font, comprising the steps of: chilling a container for beer to a temperature of at least -5° C.; and, filling the container with the beer from the font, the beer being delivered from the font at a temperature above the freezing point of water for creating a drink having a head of foam and crystals of frozen beer formed below the head of foam after filling of the container with the beer.

What is worse is that this patent application was allowed without ever going to final rejection. The applicant filed, made some minor amendments to certain claims and then the patent examiner relented and issued the patent. This is absolutely insulting and really should be investigated. The Patent Office is issuing patents on a method of pouring cold beer into a cold glass while they bury certain software innovations under a sea of unrelenting rejections.

It is hard to believe this is the same Patent Office that will at times actually tell you with a straight face that software is not patent eligible because it merely does what a human could do. This type of ridiculous patent was supposed to be prevented by the Supreme Court’s decision in KSR v. Teleflex! Does the Patent Office have no sense of fairness? How is it fair to put real innovations through many years of arduous patent prosecution and issue a gimmick patent like this for pouring cold beer into a cold glass?

I find this patent so exasperating because the patented method essentially breaks down to nothing more than chilling a container to at least -5° C and then filling that container with beer that is above 0° C.

Originally in this case the patent examiner rejected the claims as being obvious, which in and of itself is shocking. There was nothing that the examiner could find that would be suitable under 102 to reject the pouring of cold beer into a cold glass? Regardless, any number of magazine advertisements or clips from movies, or just observing life in American could have and should have lead a responsible patent examiner to issue an obviousness rejection that could not be overcome. Of course, that is not what happened here.

Ultimately, the patent examiner issued these claims. Here is the examiner’s rationale, which is found in the Reasons for Allowance:

The prior art of record when considered as a whole, alone or in combination, neither anticipates nor renders obvious a method for serving beer comprising chilling a container for beer to a temperature of at least ?5° C; and filling the container with the beer from the font, the beer being delivered from the font at a temperature above the freezing point of water for creating a drink having a head of foam and crystals of frozen beer formed below the head of foam after filling the container with the beer.

So in other words, the patent examiner merely mimicked the claim and seems to have relied upon the result of the method step to somehow impart patentable uniqueness to the method itself.

I wonder how many bars and restaurants are infringing this patent? Perhaps you should warn you favorite watering hole to make sure that any glasses chilled are not chilled to -5° C.

The Author

Gene Quinn

Gene Quinn is a patent attorney and the founder of IPWatchdog.com. He is also a principal lecturer in the PLI Patent Bar Review Course, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam.

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields, but specializes in software, systems and electronics.

is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.

Gene is a graduate of Franklin Pierce Law Center and holds both a J.D. and an LL.M. Prior to law school he graduated from Rutgers University with a B.S. in Electrical Engineering.

You can contact Gene via e-mail.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 25 Comments comments.

  1. foreign examiner October 29, 2013 9:44 pm

    “I wonder how many bars and restaurants are infringing this patent?”

    Not too may I imagine. Even in countries that serve their commercial beer way to cold (I’m looking at you Australia) the glasses aren’t that chilled.

    The only place in an establishment that gets that cold would be the freezer and I don’t think that too many managers/chef’s would want glasses stored in there (not least of all because bar/wait staff would have to continually go through the kitchen to get glasses).

    In any event, to achieve the desired result the beer would need to be really cold (i.e. abnormally so), and very few places ever serve it that cold (even in Australia)

    It’s not surprising that the examiner could not find any thing to anticipate the claims (I don’t understand how you think a picture of cold beer in a cold glass would be sufficient to anticipate the claims) as both the glass and the beer are at temperatures below that which any person skilled in the art would use alone, let alone in combination.

  2. patent leather October 29, 2013 11:35 pm

    I usually try to refrain from busting on anyone else’s patent because I would certainly be annoyed if anyone criticized any patent i have gotten for a client. But HOLY COW! That’s even worse than the patent on the “Stick”. I don’t even see how an attorney can ethically take someone’s money to file that. I wouldn’t even take money for a search on that invention, I would just say it isn’t patentable. But I guess I would have been wrong!

    There is also a fatal error in claim 1 (not that it would be enforceable anyway). “chilling a container for beer to a temperature of at least -5° C.” means anything over -5 degrees! I think he meant to claim “lower than -5 degrees.” The dependents which then claim ranges (i.e. claim 13 says between -5 and -10) would all be indefinite.

    If this patent were valid it would probably be the most valuable patent in US history!

  3. Bobby Beernuts October 30, 2013 12:17 am

    “Software” claims are filed, issued and aggressively asserted all the time that are just as junky and obvious as this claim. Your blog regularly reports on them but without the analysis of validity, much less the remarkable “outrage” exhibited here. Having second thoughts about that presumption of validity?

  4. Mark October 30, 2013 8:50 am

    I have a sneaking suspicion that I have participated in infringement at several bars in the past…

  5. Ralph Albrecht October 30, 2013 8:53 am

    If I had been the Examiner I would have just cited “A&W Root BEER’s got that frosty mug taste… only A&W’s got that frosty mug taste…” … I know A&W, and they ain’t no A&W. I feel the same frustration you voice re how this could be found patentable by the same office that requires 2-3 rces and extensive estoppel before allowing a narrowly drafted software claim in many an inventive software/ business method invention. I think I have no choice but to pull a frosty mug out of my freezer and have a drink, as I have since 1984…so sue me.

  6. anon2 October 30, 2013 9:20 am

    This patent is directed to a C02 glass froster and the applicant and examiner both appear unaware that such frosters have been around for decades:

    http://www.google.com/patents/US3373579 (CO2 glass froster)
    http://www.google.com/patents/US3602008 (another C02 froster)
    http://www.google.com/patents/US5367887

    Like most examiners, I assume the examiner here has no practical background in his examination field. I would bet that this examiner was placed in the art unit after being hired fresh from college. This is a common problem across the PTO given the PTO’s focus on hiring fresh college graduates instead of practicing engineers or actual experts.

  7. Jim October 30, 2013 10:12 am

    A global crisis!

    This from an Aussie company who makes beer dispensing equipment
    http://www.andale.com.au/manufacturing

    Glad to see the Brits can’t criticise us on this one! GB2454839 (B)

    http://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20110105&DB=EPODOC&locale=en_EP&CC=GB&NR=2454839B&KC=B&ND=4

    I think freedom to operate needs more research… ;-)

  8. Gene Quinn October 30, 2013 11:29 am

    Bobby-

    Nice try, but your misrepresentations of what I write won’t help you score any points in an honest and fair debate.

    How about you give me one single example of an obviously invalid software claim being asserted and we can go from there.

    The articles that you must be referring to don’t mention validity because they are not about validity, but rather litigation abuse that relies on judicial inefficiency and extortion-like demands of a few hundred or a few thousand dollars to settle. The question of whether the claims are valid don’t come up.

    You can pretend, if you like, that most software patent claims are bad, but those with experience in the industry know otherwise.

    -Gene

  9. Gene Quinn October 30, 2013 11:30 am

    Foreign examiner-

    Fair point.

    Truthfully, the folks that are most likely infringing this are individuals. I know growing up my uncle always kept a few mugs in the freezer and served brew from a quarter keg.

    Cheers.

    -Gene

  10. John Smith October 30, 2013 2:52 pm

    “dispensing the beer into the glass to create a head of foam on the beer”

    Correction good sir, a head of foam with crystals of beer! Praise be to the useful arts! They need this at my local pubs, yesterday.

  11. John Smith October 30, 2013 2:57 pm

    Gene in all fairness, I’ve worked a tap at a bar before and I don’t recall us chilling the container to -5 degrees C. And that is to say nothing of the formation of beer crystals in the beer later. I presume that is just a natural consequence of chilling the container so low and then letting the contents hit the normal air above 0 when pouring. I hear that you think they should have applied ads and tv shows, but those don’t discuss the temperatures usually and I’ve never heard of one saying they chilled the font to -5C.

  12. F Zul October 30, 2013 8:32 pm

    Relax.. No bar would serve a a drink having a head of foam and “crystals of frozen beer” formed below the head of foam. None of the bars I know would infringe this.

  13. Mark Nowotarski October 31, 2013 12:44 pm

    There is a wonderful local pizza place that has served me my beers this way for the past 20 years. I would be happy to sign an affidavit to that effect.

  14. Mark Nowotarski October 31, 2013 12:47 pm

    By the way, any one who has filled a frozen gel mug from a keg also can provide antedating prior art. Most freezers are kept below 0 degrees F, which is well below -5 degrees C.

  15. Mark Nowotarski October 31, 2013 12:50 pm

    Speaking of 112 second paragraph (pre AIA), does “chilling a container for beer to a temperature of at least -5° C” mean the temperature is above or below -5C?

  16. Eliza October 31, 2013 2:47 pm

    @foreign examiner – it is quite common for bars to store their beer mugs in freezers – at least in North Carolina. The Chili’s Resturant near my church serves them so cold that much of the beer becomes ice and you need to use jacket sleeves to hold the glass comfortably.

  17. Thunder Stolen By Mark October 31, 2013 2:50 pm

    I was going to jump in and correct foreign examiner and others, but it appears Mark stole all my thunder. Maybe it’s a regional thing, but down south most bars have short top-slider freezer cases for frosted beer glass storage. As Mark notes, freezers are generally kept much colder than -20C or so.

    The applicant’s Australian. Maybe they don’t have the same advantages Down Under that we have Down South, y’all?

  18. Steve October 31, 2013 3:47 pm

    Unbeerlievable!

  19. Anon October 31, 2013 4:50 pm

    How do I become an examiner in this art field? (Hands on examination would be a must!)

  20. Patent Examiner from Canada November 1, 2013 1:34 pm

    I remember as a child going to A&W and being so excited ordering their delicious Root Beer on tap served in a chilled (yes, from-the-freezer-chilled) mug. (hmm… maybe their freezer was not kept at -5C?)

  21. GMS November 4, 2013 6:42 pm

    Before you get too riled up about the scope of the claims, you might want to check out the first piece of cited art (Scullion) which uses a frozen tap to get a similar effect (ice crystals without added water). Claim 1 there (issued in 2005) indicates:

    1. A method of keeping a draught-dispensed, alcoholic beverage in an open-topped drinking vessel cool, said beverage comprising a water content, an alcohol content, and a dissolved gas content, and said method comprising the steps of dispensing said beverage from a dispense tap into said drinking vessel and forming a plurality of ice crystals in said vessel from a portion of said water content of said dispensed beverage, whereby said ice crystals have a cooling effect on the beverage, wherein said portion of said water content is in a range of 0.5% to 3% by weight.

  22. Gustav November 5, 2013 10:27 am

    #20, A&W chills their glasses to -12°C.

    So, could you defeat this patent by chilling your glasses to -4.9° instead of -5?

  23. Anon November 8, 2013 7:53 am

    Gustav,

    That depends. Often ranges are taken as ‘fuzzy’ and if your intent is to practice the patent but skirt the listed limit, then the attempt to avoid by .1 might be taken as equivalent under the doctrine of equivalents.

  24. Dirk November 10, 2013 9:43 am

    I am not a US patent attorney, but for me the claim scope of this patent appears very narrow. This for the following reason:

    The feature “crystals of frozen beer formed below the head of foam” cannot be fulfilled in normal cases. Typically, if a beer is cooled below -5°C, crystals of frozen water (i.e. ice) will form below the surface. The Beer itself contains way too much carbon dioxide and cannot be obtained in crystalline form.

    The patent appears is useless in my opinion.

    “Prost” from Munich, Germany

  25. Mark Nowotarski November 10, 2013 7:50 pm

    interesting point. When you freeze an aqueous solution (e.g. beer), the solvents come out of solution and the crystals are generally pure water. In fact, zone freezing is a common technique of purifying liquids.