Stupid Patent Of The Month: Using A Computer To Count Calories

from the counting-patents-on-a-computer dept

Wed, Jul 5th 2017 3:49pm — Daniel Nazer, EFF

This month's stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the '863 patent) is titled "Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning." It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.

The '863 patent is owned by a patent troll called Dynamic Nutrition Solutions, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the '863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.

What "invention" does the '863 patent purport to cover? Claim 1 of the patent is reproduced in full below (with comments in brackets):

A computer program comprising a combination of code segments stored in a computer-readable memory and executable by a processor to provide nutrition content information related to consumables, the computer program comprising:

a code segment operable to receive and store an input related to consumption of consumables, and to associate the input with a calender [sic] date [i.e. program a computer to track daily food intake]; and

a code segment operable to generate an interactive display screen, wherein the interactive display screen includes— [i.e. include some kind of user interface]

one or more lists of consumables and related nutrition content information, and [i.e. list food options and nutrition information]

a summary section of past consumption of consumables. [i.e. list past food intake]

In other words, program a computer to help people keep track of meals and calorie or vitamin intake.

The application for Dynamic Nutrition's patent was filed on June 11, 2001. By that time, computers had been around for decades and there was nothing remotely surprising or innovative about programming a computer to keep track of data—whether it be nutrition data or units shipped or accounts receivable or whatever. Nevertheless, the Patent Office takes an extremely rigid approach to whether or not a patent application is obvious. This means that companies often get patents on common sense ideas (like taking photos against white background or filming a yoga class).

Even leaving aside the issue of obviousness, the claims of the '863 patent are invalid under the Supreme Court's Alice v. CLS Bank decision (which struck down patents that merely claim the use of conventional computers to implement an abstract idea). Indeed, the first company to be sued by Dynamic Nutrition, Under Armour, filed a motion to dismiss the case under Alice. Under Armour pointed out that the '863 patent itself repeatedly emphasizes that its methods can be implemented using any conventional computer or programming language. Given the strength of this argument, it is unsurprising that the litigation settled before Dynamic Nutrition even filed a response.

Dynamic Nutrition's patent is not even the only patent that claims using a computer for routine meal planning. A patent troll called DietGoal sued dozens of companies with a meal planning patent. A court invalidated DietGoal's patent under Alice because it claimed nothing more than the "conventional and quotidian tasks" of selecting meals. The Federal Circuit affirmed that ruling. The logic of this decision applies straightforwardly to Dynamic Nutrition's patent claims.

We recently launched our Saved By Alice project where we are highlighting cases where companies attacked by stupid software patents were able to use the Alice decision to defend themselves against weak patent suits. The Dynamic Nutrition litigation is yet another example of why the Alice ruling is important and how it can protect productive companies from patent trolls.

Reposted from the EFF's Stupid Patent of the Month series.

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Filed Under: counting calories, patents, stupid patent of the month
Companies: dynamic nutrition, dynamic nutrition solutions

18 Comments

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Anonymous Coward, 5 Jul 2017 @ 4:09pm

"It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer."

This. 1000 times this. How is it possible these patents ever got approved?

We were writing recipe and nutrition programs back in the late 70s (maybe earlier). This patent wasn't even filed until 2001. If it wasn't filed in the 30 years in between perhaps that's because all the smart people already knew this was totally obvious?
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Anonymous Coward, 5 Jul 2017 @ 4:20pm

but was it obvious to a moron in a hurry?
We all know the common moron's can be pretty obtuse, and when you get one in a hurry, well they just can't seem to understand anything rational...
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Anonymous Coward, 5 Jul 2017 @ 4:23pm

Obvious to a patent examiner in a hurry?
What I meant to say was that while we all know that this would have been obvious to any moron in a hurry, it is obviously not obvious to a patent examiner in a hurry...

Now I'm not trying to state that a patent examiner in a hurry is somehow less spectacular than a moron in a hurry, but that does seem to be the case given the evidence provided...
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Anonymous Coward, 5 Jul 2017 @ 4:38pm

The patent examiner is in the unusual position (for a petty bureaucrat) that saying "yes" is the safe-and-convenient answer. Saying "no" on a patent embroils him in defensive banter with a lawyer: and while the lawyer is remunerated handsomely for just such banter, the patent examiner gains nothing but a downcheck for "inefficiency" on his next performance review.

You'd need an honest patent examiner to say "no" half the time it's justified; but an honest examiner couldn't survive in the office, due to the numerological aspects of his performance review.

And yes, I know there's a difference as deep as all meaning between "numerological" and "numeric", and I said what I meant.
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Stosh, 5 Jul 2017 @ 4:47pm

DANG IT, I guess my patent to write words on a computer won't win all the court cases my lawyer promised....
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Roger Strong (profile), 5 Jul 2017 @ 4:55pm

Re:
Yup. "In the December 1982 issue of COMPUTE!, Charles Brannon presented a program for calculating the calories in your diet."

Just a couple years later - I'm thinking of Coleco Adam ads - storing recipes and calculating calories was one of the reasons why you too should own a computer.
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Roger Strong (profile), 5 Jul 2017 @ 4:58pm

Re:
Have you tried patenting email?
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tin-foil-hat, 5 Jul 2017 @ 5:31pm

Uh Oh
I've memorized the calorie content of hundreds, maybe thousands of foods. Can they sue me?
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Anonymous Coward, 5 Jul 2017 @ 5:54pm

Let's get a patent on using a computer to count stupid patents.
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Anonymous Coward, 5 Jul 2017 @ 6:15pm

Re: Re:
"Have you tried patenting email?"

Is that the same as emailing a patent?
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Andronymous Cobweb, 5 Jul 2017 @ 6:24pm

Pandemic Attrition
Good thing I filed my patent to cover Fat ounces and kilojoules. Nothing obvious there.
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Anonymous Coward, 5 Jul 2017 @ 8:10pm

A software patent shouldn't even be a thing. A computer program is a list of instructions to the CPU that tell it how to do something, not unlike the instructions that accompany a piece of furniture that tell you how to assemble it. Patent doesn't apply to those instructions, copyright does; and even then, only if the instructions have content more significant than the assembly "recipe."

Also, in general, I have a problem with pretty much every software patent I've seen that is vague about *how* exactly their software accomplishes whatever the patent application says it does. "A code segment that does X" - well, no kidding, it's a computer program. What's the actual code that accomplishes the claim?

Whenever I think of this, I imagine patent applications for mousetraps. For example, there's the kind with the spring-loaded snapping bar, and there's also the kind with glue. You'd be hard-pressed to show that either of those implementations infringes the other. However, in the software world, apparently "a code segment operable for detecting computer viruses" in the claim would be sufficient, and every anti-virus program would infringe, regardless of exactly how the code was written. That doesn't make sense to me.
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orbitalinsertion (profile), 5 Jul 2017 @ 9:20pm

Re:
The other funny thing about software patents as the are or were, is that there appears to be nothing requiring you actually wrote said software, or that it works. And given what passes for "ingenious design", it's a riot.
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deadspatula (profile), 6 Jul 2017 @ 6:37am

Re:
Actually, Patent law is much more applicable than copyright to software. Math cannot be copywritten, and in fact aside from naming conventions there is not any 'creative' output within software. The problem is not that software patents exist. A novel algorithm which radically improves computation time over existing methods could, conceivably, be an excellent patentable subject.

The problem is the way patents are now written. They are written in broad strokes, rather than focusing on the actual process by which the 'invention' preforms its function, allowing the patent recipient to lock down the entire market, and not allowing other methods to come to market. Polaroid got a patent on their method for creating instant photos, and successfully managed to shut down a competitor who used a completely different process due to broad patent language.

Don't blame a symptom for the disease that caused it. Blame the disease.
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Wendy Cockcroft, 6 Jul 2017 @ 7:09am

Re: Re:
There was a guy who copyrighted EMAIL. Is that the same thing? ;p
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Anonymous Coward, 6 Jul 2017 @ 10:38am

Actually, Patent law is much more applicable than copyright to software. Math cannot be copywritten

That's "copyrighted", and math is normally considered explicitly unpatentable.
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Thad, 6 Jul 2017 @ 11:56am

Re: Re:

Math cannot be copywritten

It's "copyrighted". Right to copy, not writing copy.

Can math be patented?
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Anonymous Coward, 6 Jul 2017 @ 2:16pm

Re:
I always thought one of the requirements of a patent was that it contained enough information that someone reasonably well versed in the field could recreate the invention with minimal difficulty and without additional invention. I've never read a software patent that met criteria yet those I've read for physical devices always have.
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