Bagel Company Sued For Claiming It Had Patented Process For Making 'Brooklyn Water'

from the rolls-with-holes dept

Tue, Sep 21st 2010 11:33am — Mike Masnick

Way back in high school, my after school/weekend job was working in a bagel shop in New York. I learned pretty much all aspects of the bagel business, and ever since then I take bagels pretty seriously -- including the well known fact that you just can't make good New York bagels outside of New York. Often, it's because bagel shops elsewhere take shortcuts in how they cook their bagels, but the key reason is, of course, the water. Making a bagel (properly) involves boiling the dough before cooking the bagel, and for whatever reason, only the water in New York seems to have that perfect quality that makes a bagel into a bagel. Since moving away to California, I've never been able to find anything that comes even close to a New York bagel, and instead have to settle for vastly inferior "rolls with holes," that people around here think are bagels.

So, this next lawsuit caught my attention not just because of the patent issues (the stuff that normally catches my attention), but also because it's about bagels and bagel water. Apparently, there's a company (based in Florida, not Brooklyn), called the Original Brooklyn Water Bagel Co., which claims to not just make New York-style bagels, but also to make its own "Brooklyn water," which is necessary for making such bagels, via a "14-step patented process." However, another Florida-based eatery, Mamma Mia's Trattoria is suing OBWB for false patent marking, saying the 14-step patented process is neither 14 steps nor patented:

If you don't recall, we've had a few long and detailed posts about the issue of patent marking, which has gained a lot more interest lately, due to some recent rulings that have greatly expanded the potential damages for falsely claiming something is patented when it is not, while also making it easier for anyone (and we do mean anyone) to sue for false patent marking. In fact, because of this, a whole bunch of new patent marking lawsuits have been filed, leading many to feel the law is being abused. However, this story, if the details in the complaint are accurate, seems like exactly the sort of situation that a false marking law was designed to handle.

Mamma Mia points out how often OBWB points to its "patented process" in its marketing and advertising campaigns, suggesting some sort of proprietary and exclusive advantage. However, Mamma Mia notes, it does not appear that OBWB actually holds any patents whatsoever. Oops. OBWB's claim for its "patented process," apparently comes from the fact that it licensed a bunch of patents from another company -- Aquathin (also from Florida), which makes water filtration systems. When Mamma Mia demanded to know what patents were being used, OBWB listed out seven patents from Aquathin.

The only problem? Four of the seven patents are already expired. Of the remaining patents, two are actually design, not utility, patents (which is more like a trademark, and not what people think of when talking about a patent, as it's about the design of a product not any "process"). That leaves a single utility patent (which is close to expiring), but if you look at that actual patent (5,147,533), it's about how to mount a water purification system under a kitchen sink -- which has nothing to do with the process of purifying the water itself.

So, there doesn't appear to be any actual 14-step-patented process here. There may be a 14-step process, and who knows if it actually creates anything close to Brooklyn water, but the patent claim appears to be highly questionable, at best. Even so, Mamma Mia's complaint notes, OBWB still threatened to sue Mamma Mia for infringing on its (apparently non-existent) "patented process," in offering its own "New York-style" pizza.

If the allegations are true, this does seem like exactly what patent marking lawsuits were designed for: to prevent a company from falsely claiming a monopoly on something it has no right to. Of course, this means that if it's actually possible to create a process to replicate New York water (that doesn't involve, you know, bottling water from New York and shipping it around), and that process is not patented, then perhaps there's still hope that we'll be able to get "real" bagels in California...

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Filed Under: bagels, false marking, marking, patent marking, patents, water
Companies: mamma mia, original brooklyn water bagel

45 Comments

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Dark Helmet (profile), 21 Sep 2010 @ 11:49am

Plus...
"Often, it's because bagel shops elsewhere take shortcuts in how they cook their bagels, but the key reason is, of course, the water."

That and the fact that, for some unknown reason, lox tastes a million times better in Gotham City....
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- Hephaestus (profile), 21 Sep 2010 @ 12:12pm
  
  Re: Plus...
  "lox tastes a million times better in Gotham City"
  
  its the soot from the exhaust of the city buses ...
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  - Christopher Gizzi (profile), 21 Sep 2010 @ 12:42pm
    
    Re: Re: Plus...
    NYC busses are some of the most clean and environmentally friendly busses in the nation. They run off of natural gas and many of them are now becoming hybrids.
    [ link to this | view in chronology ]
    - Christopher Gizzi (profile), 21 Sep 2010 @ 12:44pm
      
      Re: Re: Re: Plus...
      I miss my spell check. I can't understand why my browser doesn't support inline checking.
      
      *buses
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- Hephaestus (profile), 21 Sep 2010 @ 12:13pm
  
  Re: Plus...
  ... it gives it that wonderful smokey flavor
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Just Anonymous, 21 Sep 2010 @ 11:55am

Marking
It would be interesting to see how the fine would be tallied up. The statute gives a maximum fine of $500 per occurrence. Post-Forest, the courts have held that to be on a "per article" basis when marked on products. I wonder how it would apply to advertising. Each time the statement was made?
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- Hephaestus (profile), 21 Sep 2010 @ 12:15pm
  
  Re: Marking
  "Each time the statement was made?"
  
  Or each newspaper sold?
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Adam, 21 Sep 2010 @ 12:05pm

Brooklyn Water...
Burton on Trent (in the UK) is home to one of the largest breweries in England and make (IMHO) wonderful ales (Bass Ale being my favorite). The secret is supposed to be in the water which comes from a aquifer under a gypsum cap. Because equivalent water is not available in North America, Burton on Trent water is carefully evaporated and the minerals in it are bagged and sold to American brewers. Added to demineralized water, these minerals recreate B on T water. Perhaps someone in Brooklyn needs to do the same. Nothing like a NY bagel exists in Nova Scotia.
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- Chris, 21 Sep 2010 @ 1:23pm
  
  Re: Brooklyn Water...
  I'm pretty sure that the "Burton Water Salts" available at my local home brew shop is just a combination of Gypsum, Potassium Chloride and Epsom Salt(although some formulations add papaya proteinase enzyme which aids clarifying agents by breaking down the proteins that cause chill haze[sorry, didn't mean to turn this into a homebrew lesson]). I doubt that something I can buy for $0.40 per oz. was bagged in England and shipped here.
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- Ben, 21 Sep 2010 @ 1:33pm
  
  Re: Brooklyn Water...
  OK, I'm from Brooklyn, I cook & eat the same way now as I did before I left in 1960, IMHO the only difference between "Brooklyn water" and any other water is that it is running through old rusty 100 year+ year old pipes, remember NY water all comes from upstate and is nothing out of the ordinary.
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John Doe, 21 Sep 2010 @ 12:09pm

Great!
Now I am going to have to go to NYC just to get a bagel and see what all the fuss is about!
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- Anonymous Coward, 21 Sep 2010 @ 2:07pm
  
  Re: Great!
  MM is participating in tourism advertising.
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Hephaestus (profile), 21 Sep 2010 @ 12:11pm

Brooklyn Water ...
"this means that if it's actually possible to create a process to replicate New York water"

1-Filter Water
2-Distill Water
3-Add Trace minerals to match the Ashokan Reservoirs water
4-Adjust ph

simple ...
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- Christopher Gizzi (profile), 21 Sep 2010 @ 12:56pm
  
  Re: Brooklyn Water ...
  NYC's water is not filtered so additional impurities add to the taste. And I suppose you could create a method to reproduce it but I think it would be pretty hard to be exact. But even then, the pipes add to the flavor.
  
  It would be hard to replicate it. NYC has the best water.
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  - Rich, 21 Sep 2010 @ 2:59pm
    
    Re: Re: Brooklyn Water ...
    Since the water comes from upstate, I would say they don't have the best water.
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  - Hephaestus (profile), 22 Sep 2010 @ 6:23am
    
    Re: Re: Brooklyn Water ...
    "It would be hard to replicate it."
    
    Water meet mass spec
    
    "NYC has the best water."
    
    Actually it comes from several reservoirs in upstate ny
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- Anonymous Coward, 21 Sep 2010 @ 1:29pm
  
  Re: Brooklyn Water ...
  Why not jump right to step 2?
  [ link to this | view in chronology ]
  - Hephaestus (profile), 22 Sep 2010 @ 6:25am
    
    Re: Re: Brooklyn Water ...
    You could but just jump to step 2. But which is easier, replace a filter, or scrape the distillation tank periodically.
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Anonymous Coward, 21 Sep 2010 @ 12:14pm

Stop unfair bagel taxes.
>> there's still hope that we'll be able to get "real" bagels in California...

The biggest issue within the Bagel industry is that New York now collects an 8-cent tax on any bagel that's sliced, schmeared, or otherwise prepared. It seems racist.
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- abc gum, 21 Sep 2010 @ 5:09pm
  
  Re: Stop unfair bagel taxes.
  "It seems racist."
  
  Please explain
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- Jonathan Frishtick, 9 Jan 2012 @ 5:32pm
  
  Re: Stop unfair bagel taxes.
  I hate to say it but I remember when bagels at Bagel Oasis on Horace Harding Blvd in Fresh Meadows, Queens were 8 cents a piece.
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Paul Renault (profile), 21 Sep 2010 @ 12:16pm

Oy! Give me a Montreal Bagel!
Maybe, as is the case in social sciences' wars, the reason the Original Brooklyn Water Bagel Co. is going to such extremes, is because the stakes are so low...

You haven't had bagels until you've had them from these two places:
St-Viateur Bagel
http://en.wikipedia.org/wiki/St-Viateur_Bagel
Fairmount Bagel
http://en.wikipedia.org/wiki/Fairmount_Bagel
According to an article in the Christian Science Monitor:
"All are better than what you'll find in the United States."

While you're in the neighborhood, stop by Wilenski's for a 'special' or two (picture some of the scenes from "The Apprenticeship of Duddy Kravitz"), or by Schwarz's for what is, by far, the best smoked meat sandwich in the world.

Really.
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- johnny canada, 21 Sep 2010 @ 1:10pm
  
  Re: Oy! Give me a Montreal Bagel!
  Oh how I miss Montral bagels,
  
  Being on the left coast of Canada the closest I can get here is Segal's Bagels, which are made in the Montreal style (which is actual Romanian)
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- Anonymous Coward, 21 Sep 2010 @ 1:45pm
  
  Re: Oy! Give me a Montreal Bagel!
  A friend's son went to McGill and commented that while he could find good bagles and good french pastries in Montreal, neither were as good as what he would get in New York or Paris.
  
  His father (born and raised in France) said it wasn't so much they weren't as good as it was they weren't what he expected. When is comes to food, good versus bad is easy. Good versus very good is usualy a matter of preferences and expectations. Who made it is more important than where it was made.
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GeneralEmergency (profile), 21 Sep 2010 @ 12:18pm

Further insight required Mike...
Mike...

For those of us poor schlubs that will never step foot in New York state, exactly what is the difference between your typical "California" bagel and a real New York Bagel?

Should I be eying that poly bag of eight bagel impostors lurking in my fridge with derision or pity?
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- Anonymous Coward, 21 Sep 2010 @ 12:34pm
  
  Re: Further insight required Mike...
  Both.
  
  I'm not Mike, but I travel a lot. And there's nothing like a NY bagel. It's impossible to explain why they're so good, but the packaged ones taste like bread with a thin crust and too much air.
  
  A real bagel is heavy and chewy and hearty. It absorbs the butter, or lets the cream cheese sit on top for the perfect combo.
  
  Dammit. now I'm hungry.
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- Anonymous Coward, 21 Sep 2010 @ 1:55pm
  
  Re: Further insight required Mike...
  Pick up a bagel in NY and odds are it was made earlier that morning (while you slept) so one difference is "freshness".
  Nothing beats picking up a dozen while they are still hot!
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:Lobo Santo (profile), 21 Sep 2010 @ 12:39pm

Patented...!
Bah! What's wrong with just using the word "exclusive" or "secret" and calling it a day?
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- Anonymous Coward, 21 Sep 2010 @ 9:46pm
  
  Re: Patented...!
  The exclusive with no enforcement capabilities implies you can be misguiding anyone in the future if someone else is doing the same thing, so they will argue that exclusive must need a enforcement component, which is not good.
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Edward Costello (profile), 21 Sep 2010 @ 12:55pm

The secret to NYC Bagels…
…is the tiny shrimp in our water: NYC’s Tap Water: Clean But Filled With Crustaceans
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- Chris, 21 Sep 2010 @ 1:07pm
  
  Re: The secret to NYC Bagels…
  I came here just to mention that. Here is another reference:
  
  http://consumerist.com/2010/08/new-yorks-water-filled-with-invisible-shrimp.html
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  - Anonymous Coward, 21 Sep 2010 @ 1:38pm
    
    Re: Re: The secret to NYC Bagelsâ�¦
    It's the sea monkeys?!
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Anonymous Coward, 21 Sep 2010 @ 1:33pm

New York Water
It seems highly unlikely that the water taste and chemical makeup could have remained consistent since the time Mike was in high shcool. I would even bet that there are changes between the seasons.
Doesn't anyone else think this is a reasonable assumption?
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- Anonymous Coward, 21 Sep 2010 @ 9:49pm
  
  Re: New York Water
  We should make a website!
  
  Water Fest Test.
  
  Put the instructions on how to proceed and have people posting the results and showing up in a google maps LoL
  
  That would be fun
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DannyB (profile), 21 Sep 2010 @ 1:38pm

Thank God we live in a country . . .
. . . where you can get a patent on how to mount a water purification system under a kitchen sink.

Innovation at work. If someone hadn't patented that idea, nobody would have ever thought of a way to mount a water purification system under a kitchen sink.
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bigjuliefromchicago (profile), 21 Sep 2010 @ 1:44pm

NYC bagels
The truth is there haven't been any "real" NY bagels since the bagel bakers union disappeared in the the mid '60s. There are few places that come close but most bagels in NYC are just as bad as in the rest of the country.
The water is the least of it. A real bagel is hand rolled then boiled, broiled, and baked. Nobody is willing to put in the labor anymore. All you get these days are rolls with holes.
feh.
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- Anonymous Coward, 21 Sep 2010 @ 2:03pm
  
  Re: NYC bagels
  Having worked in NYC for 40+ years and counting, I have to disagree. Not to say they're aren't plenty of rolls with holes, but there are also plenty of great bagels, even in the suburbs. The key isn't the water it's the "hackcent" of the guy making them.
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Kamen (profile), 21 Sep 2010 @ 3:54pm

Brooklyn Water
All this time I thought "Brooklyn Water" was when you took a leak in an old rusty bucket and tricked someone into drinking it.
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EEJ (profile), 21 Sep 2010 @ 5:13pm

Eddie & Sam's Pizza in Tampa
Eddie & Sam's Pizza in downtown Tampa FL claim to use water from New York to make all of their dough for their pizza. They claim that when they first started down here, something just wasn't right about the taste/texture, and they now have water shipped down here to be used in their doughs.

I heard that a prominent dent in the tile was caused when water stored upstairs leaked through and caused the ceiling to fail.

Don't know if it's really true, but it's a good story, and they DO have great pizza!
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Spaceman Spiff (profile), 21 Sep 2010 @ 6:39pm

Well... maybe!
Let's see. I wear patent leather shoes, walk 14 steps to the tap, and draw some water. In theory I COULD say that I was using a 14 step patent(ed) process... :-)
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khyzhyj, 22 Sep 2010 @ 2:46am

Montreal Bagels
Mike, Respectfully, I have to disagree with your statement that outside of NYC - one cannot get a decent bagel! Ever been to Montreal, QC? Two outstanding bagel shops: St. Viateur Bagel Bakery & Fairmont Bagel. Americans (especially from NYC) flock these two establishments! What makes the bagels from these shops outstanding - it's not only the water but the process of making them. The hand kneading the dough is key! Anyways - I recommend a road trip!!! While you are in Montreal - check out Schwartzs Deli (http://www.schwartzsdeli.com/index2.html) for some Montreal smoked meat!!! You will never go back to the NYC establishments (e.g., Katz's, Carnegie, 2nd Ave, etc Delis) for pastrami or corned beef! That's my $2 worth (Note: due to inflation the price has gone up!?!?!?). Finally, I'm not from Montreal nor the Belle Province - Quebec. However, I am a former NYC resident! Cheers - Khyzhyj
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JustMe (profile), 22 Sep 2010 @ 3:44am

Re: Lox
We've been making our own for years. Get yourself a nice side of Pacific (NOT Atlantic) wild (NOT farmed) Coho or Chinook and put it in a smoker box for about 40 minutes. Your fishmonger may even pull the pinbones for you, if not look on Lifehacker for the bowl trick. Smoking doesn't take long and you want the smoke to do the work instead of the heat, so use lots of pre-soaked wood chips and fewer coals. Fresh lox beats Gotham lox by a mile.

Cheers
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Fillip Mignion, 22 Sep 2010 @ 10:46am

Owner of OBWB is a ScumBag
First of all Steven Fosberg lies throughout the companies marketing and advertising not just about the patents he and his company do not have. 1. owner Mr.. Fosberg is not from Brooklyn. How do I know? I indirectly know his family. 2. Mr.. Fosberg is a scam artist he has opened at least 4 different businesses over the years and bilked investors out of their money once he bankrupts them and moves himself to a different state. I hear he planning to move to Cali. In terms of OBWB in the first few months after he opened the store he got himself a new BMW paid with cash while a year later investors have yet to see a penny returned on their investment. I could go on but I'll stop for now hopefully his time scamming hard working people is coming to a end.
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DW, 25 Oct 2010 @ 9:06pm

Brooklyn Water
Not only Pizza and Bagels taste great from Brooklyn you should try the Italian Bread.
It is all in the Water.
I knew from the day the Brooklyn Water Co. Opened that someone was going to use that water for Pizza. Next is the Italian Bread.
I wish them Both best of Luck with their Law Suite
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Jonathan (profile), 9 Jan 2012 @ 5:42pm

Bagels
If you want a good bagel, fashioned after the Bagels from Bagel Oasis of old, then head up to White River Junction Vermont. No kidding. Bakers Studio, (802) 296-7201
White River Junction
7 S Main St Map.eaedf11
White River Junction, VT 05001

These bagels are just like the real bagels of years ago. Tough, small, hand made, chewy, tasty. These are not rolls with holes. The owner learned in Queens and NJ. He knows his crumb. My mother-in-law takes these bagels back home to Manhattan after she visits us in Vermont. She's tired of the bread they sell in Manhattan that they call a bagel.
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