This story was originally posted back in April of 2009 on The Legal Satyricon.

by Jason Fischer

Short Answer:  No.  Probably not.

I call this one "the McBaby."  Should I try to patent it before McDonald's does?

McDonald’s Corp. is getting some recent attention in the blogosphere for a patent application, originally filed in late 2004, which describes its “Method and Apparatus for Making a Sandwich.”  What’s interesting to me about this news item is the array of different reactions that various people have to this kind of story.  Personally, it makes me laugh that McDonald’s paid a patent attorney an *expletive/deleted*-ton of money to write and prosecute a fifty-four page app, comprising twenty-three pages of drawings and flow charts and describing, in painful detail, how one might go about simultaneously preparing sandwich garnishes while “heating a pre-assembled meat and/or cheese filling”.  Clearly, my reaction is the same as the folks’ over at PatentlySilly.com.

The other response that I quite frequently see is one of outrage or consternation.  “How can they claim a patent for that?”  “Will they be able to sue me for how I make my sandwich?”  “This is what’s wrong with the U.S. patent system.”  “Yadda, yadda, yadda.”  “I love lamp.”  You get the idea.  This was Marc Randazza’s reaction when we had a conversation on the subject a few days ago.  Now I don’t mean to criticize or belittle anyone who has this initial reaction (obviously, Marc is no IP n00b), but it exposes the reactor as someone who doesn’t have a firm grasp on the intricacies of patent law.  This is nothing to be ashamed of, because the majority of the world doesn’t either.  Without digging into the details of each individual case, it’s easy to go off half cocked.

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