Obscure Patent: Carry-out food container

By Gene Quinn
December 1, 2008

Carry-out food container
US Patent No. 7,451,889
Issued November 18, 2008

Did you know that on Tuesday, November 18, 2008, a carry out food container was patented? I discussed this patent in a post last week titled Unequal Treatment at the US Patent Office, where I discussed the unfair and inequal treatment that seems to be plaguing the Patent Office.  After all, how could the USPTO, which is always congratulating itself for quality, issue a patent like this and refuse to issue patents to commercially relevant inventions?  I don’t know and I hope someone does something about it, but I am not holding my breath.  In any event, I just couldn’t leave this only mentioned in the aforementioned post, but rather I had to add it to the Museum of Obscure Patents.

It is offensive beyond words that the US Patent Office would issue a patent on a trivial device like a carry out food container when there are so many inventions that just sit and languish.  The patent itself summarizes the invention best in the Background of the Invention, which is odd enough.  The Background of the Invention is supposed to be the part of the application where the deficiencies of the prior art are discussed, not the invention that is the subject of the patent application.  In fact, in all the years I have taught patent application drafting I have always stressed to students that they should never ever discuss the present invention in the Background.  Those that don’t heed this simple requirement are never satisfied with the grade they receive, but that is not what the Background is intended for and there is absolutely no reason to run the risk of defining your invention in light of the prior art in the Background.  This should lead to the examiners to rightfully believe that the problems with the prior art define the solution, which ought to make the solution presented by the invention obvious, particularly given that since the Supreme Court decided KSR v. Teleflex the obviousness determination is about whether the inventive contribution is considered to be common sense.  Now I don’t think for a moment that the Supreme Court decided KSR correctly, and a common sense test for obviousness ought to mean that virtually no inventions are patentable, but that is the law and how this particular invention could be considered anything other than obvious, particularly in light of how the patent application was written, is beyond me.

In any event, here is what the patent itself says about the invention and the problem:

Restaurant employees that use wax paper for take-out orders still run into problems. The process of finding the wax paper and making sure it is placed neatly over the food can be time-consuming and inconvenient. At times, a restaurant employee may need to go back and forth throughout the kitchen to find wax paper. He or she may even run out of wax paper and have to go to the stock room to get some more. These become significant problems when the restaurant gets busy. The present invention addresses these problems by providing a carry-out container where the wax paper is already attached. This saves the employee time, and it can save the restaurant wax paper or aluminum foil costs. It can also serve as a way for an employee to pay closer attention to the amount of food that is placed in the container, which can also save costs. Furthermore, it increases the likelihood of an employee making sure that all items that need to come with a take-out order are there. The process of covering the food becomes more effective, and the overall appearance of the carry-out container is enhanced. These factors create a situation where the customer is satisfied and will likely come back. Overall, the invention makes the take-out process more smooth and efficient, and all restaurants can really benefit from it.

With over 1.2 million patent applications pending at the end of fiscal year 2008, applications that the United States Patent Office cannot seem to get around to because they are to busy, it is insulting that the Patent Office found it appropriate to issue a patent on a typical carry-out food container that has a piece of wax paper attached thereto.

To see other obscure patents go to the Museum of Obscure Patents.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 3 Comments comments.

  1. robertplattbell December 1, 2008 10:40 pm

    Gene, I am not sure I get your point in this posting.

    First of all, the claims to this invention cover a “built-in” wax paper layer in the container, which is something I have never seen before. So it would appear to be novel, to me anyway.

    If it’s novel, it gets allowed. That’s how it works. It does not appear to be a trivial variation on the prior art to me. How DOES one integrate the waxed paper into a foam container?

    And given the millions of these containers made, an improvement in such containers is not necessarily “frivilous”. If you ran a company making such containers, this patent would be as important to you as some software patent is to Microsoft.

    Yes, there is a huge backlog in the more technical arts like computers, software, and biotech.

    That is because there is a shortage of Examiners in those arts. You can’t a guy who examines food containers and just ship him to a EE unit and ask him to examine microprocessors.

    So the mechanical arts (like this case) have a shorter backlog (12-18 months) where as the EE arts are running 36-48 months in some instances.

    And note that this food container patent still had a pendency of over THREE YEARS.

    Unfortunately, that seems to be the way it has been running for the last few years. Recent trends – restriction requirements on EVERY case, premature FINAL rejections to force RCE filings – seem to be delaying the process even further.

    And don’t get me started on the new Appeals procedures (effecitve Decemebr 8th). Examiners are making 6-way restriction requirements with a straight face, and if you want to appeal, well, boy howdy you’d better get the new format right.

    FWIW.

  2. Gene Quinn December 2, 2008 3:40 pm

    Robert-

    I would agree that this invention may well be novel, but if KSR means anything don’t you think that this type of invention should be considered obvious? I do not think the Supremes understand patent law at all, and I think the KSR decision is ridiculous and ought to be legislated to irrelevance, but in the meantime how can the Patent Office issue any kind of KRS rejections and allow patents like this to issue?

    I would personally have no problem with allowing patents like this if it were done across the board. In order to make sure though that unsophisticated independent inventors are not harmed I would also really like to see the Patent Office go after the invention submission industry. Then have the new practice rules that went into effect on September 15, 2008, but as yet seem uninterested in enforcing them.

    Thanks for the comments.

    -Gene

  3. Food Insurance December 22, 2010 3:36 pm

    Never thought about a “to-go” container having a patent on it.