But you can patent a bread-refreshing method
EC: You Can't Patent Toast
Credit: Photo by Phil Ashley via Getty Images

In the spring of 1999, an industrial engineer named Terrance F. Lenahan applied to patent a means of making toast. Lanahan, whose email profile picture is him in a very convincing Santa getup, had stumbled upon what he termed a “bread refreshing method” while scrounging for food at work—he runs a paint finishing equipment company. He found a stale English muffin in the office fridge and put it under some infrared gear in the shop whose radiation reached between 2,500 and 4,500 degrees Fahrenheit, well over 20 times as hot as your average toaster’s coil on the 10 setting. “It took me about 10 seconds and… it refreshed the whole thing, put some moisture back in it. Which you couldn’t do in a regular oven… and you couldn’t do in a microwave, because it would also dry out prematurely and knock all of the moisture out of it,” he said. Co-workers agreed the novel and super-fast method yielded a uniquely moist muffin, he says, “so I got a little charged up” and filed for a patent on his accidental invention. He was granted his petition about a year later: patent 6,080,436.

Little did Lenahan know that his patent application would land in the middle of a raging legal fight about the integrity of America’s intellectual property protection system. When you submit a new invention or way of doing something, patent reviewers are supposed to search high or low for “prior art” that might resemble it and determine on a case-by-case basis that your proposal is sufficiently different from anything that came before it. Only then can they grant you what is essentially a 20-year monopoly over the rights to that contraption or method.

Drawing the borders of originality can be a difficult process, especially in an era of rapid technological change. Recently, there has been a rash of so-called “patent trolls;” people who file or buy up overly broad patents, almost always in the tech sector, then leverage them to sue people who “infringe” upon that patent. In one famous case, an individual filed a patent on interacting with images in a web browser, later claimed the right to profit from anyone operating an interactive website, and reportedly won some big bucks suing basically any big firm with a digital presence. More recently and intimately felt, the development of smart sex toys has supposedly been stunted by the litigious use of a patent on controlling any such devices using the internet or other computer networks. Even if the lawsuits wouldn’t hold up, the threat of a lengthy legal process can force settlements, imposing high costs and a chilling effect on tech innovation.

For the cadre of concerned citizens that see our allegedly broken intellectual property protection system as a threat to American liberty and entrepreneurship, Lenahan’s toast patent seemed to be a prime example of a bid at trolling taken to its absurdist extreme outside of the tech sector. Just as tech troll patents used broad language to claim authority over broad categories of common products or services, they felt Lenahan had used some language which could be construed as wide enough to imply he had a patent on making toast by any means. That would make almost everyone a serial infringer on Lenahan’s intellectual property rights. Crackedused the patent to open a brief list of the “most ridiculous things people tried to patent.” This American Lifereporters Alex Blumberg and Laura Sydell spent a brief aside gawping at the fact that such a patent could be issued in Episode 441: “When Patents Attack.” And economists Adam B. Jaffe and Josh Lerner called it out by name and number in their 2011 tome Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress, and What to Do About It.

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According to Joseph Page of the patent advising and legal services firm Integrity Intellectual Property, who has written on patent number 6,080,436 in the past, this concern is foolish. While the patent system may have trouble coping with the tech era, most foods are so old and the basic procedures for making them so established—we’ve had toast since we had bread and flame and toasters since the late 19th century—that there’s no chance even the most zonked-out potential reviewer would issue a patent labeling the general process or item as “new art.”

It is easy, however, to patent a new method of making toast, which is what Lenahan did. Lenahan’s technique is actually more unique than one needs to be to get a patent. To demonstrate this, Page devised a patentable toasting method on the phone with me: “Take a piece of bread out of the package. Put the slice of bread in a conventional toaster. Push the lever down to energize the heating element. Wave a magic wand over the top of the aperture three times clockwise. Wait until the detector detects the toast is done… Pull the toast out and put it on your plate.”

“Nowhere in the world, no matter how hard the [patent] examiner tries,” says Page, “is he going to be able to write down an instance of somebody doing what I just said because the wave the magic wand [step]—nobody has ever done that. That’s a unique method. That’s a patentable method [of making toast]. Because anything that’s unique is patentable.”

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But unless you’re planning to make a toaster that specifically uses this new method and want protection against people copying you, it doesn’t really make sense to patent a toasting method, or any other foodmaking process. Because not only would the patent apply exclusively to that narrow method, thwarting its trolling potential, but also no matter what potentially broad phrasing was included within it, even if someone did infringe your specific method at home—say, by waving that magic wand—you’d probably never know. If you did, it’d be likely be all but impossible to proffer evidence to a court, or to claim damages due to that infringement.

Lenahan only pursued a patent, he tells me, because he did want to develop a device using the method: an industrial conveyer belt, which might help big businesses quickly toast large batches of bread. The energy involved in the infrared tech, he says, would have precluded this from almost any at-home, civilian usage anyway. But he never got traction during his self-admittedly “mediocre” outreach attempts, so he called his sole foray into food tech a failure and let the patent die quietly.

The perception that this patent was overreaching seems to stem from people reading its short synopsis and making assumptions primed on experiences in the knotty software world. It’s hard, Page says, for most of us to understand patents’ true impacts. To wit, as Lenahan, who says he was unaware of the firestorm around his patent until I contacted him, puts it, “the people who are commenting [on this as a stupid patent] are probably ignorant of what the thing actually does.”

So Lenahan’s patent is not the mythical absurdist epitome of the failure of the US intellectual property system it’s been made out to be. It isn’t even a very successful or interesting patent. It is a symbol for legitimate general concerns about the patent process, albeit a symbol which misdirects and ultimately undercuts those concerns. You can’t patent toast. If you patent a toasting method, you almost certainly can’t use it to troll toaster makers. (Daniel Nazer, a stupid patents watcher at the Electronic Frontier Foundation says he’s not aware of much patent trolling in the food world, possibly because, as this case shows, it’d be hard to get a troll-able food method patented.) And if someone did patent your special personal means of making toast, it probably wouldn’t affect you, anyway. So toast like nobody’s watching. Toast like you’re totally free and unrestrained in your breakfast nook. Because you almost always are, no matter what a casual glance at a stupidest patent lists may have led you to think or fear.