One of the most readily discernible features of observant Jewry is its adherence to the Jewish dietary laws, colloquially referred to as kashrut. In point of fact, kashrut is a bundle of strictures and requirements. Thus, at its most basic level, kashrut involves the question of what in principle can and can’t be eaten (much like the question in patent law of what is and is not patent-eligible, as opposed to patentable): only certain birds, certain ruminant animals, and certain fish. Birds of prey and shellfish, for example, are kashrut-ineligible, but all fruits and vegetables are in principle ok.
Then there are additional limitations and requirements that must be fulfilled (sort of like the requirements for novelty and non-obviousness of the invention, and written description and enablement in the application). For example – and this is by no means a comprehensive list – for animals and birds (but not fish), the manner in which an animal is killed is critical, as is the manner in which the blood is removed. The animal must be healthy, and in the case of the ruminants, the lungs must be inspected to ensure that this is the case. The hindquarters can only be eaten if the sciatic nerve is removed. Fruits and vegetables that grow in the biblical Land of Israel must be tithed before they can be eaten. Even if the meat is kosher, it can lose that status, for example by cooking it with milk (which not only makes it ineligible for consumption but makes it forbidden to derive benefit therefrom).
Among the general population, kosher food has earned a reputation as being healthy. For that reason, many people who aren’t necessarily interested in kashrut for religious reasons nevertheless look for the service marks of one of the many organizations that grant kosher certification when buying food, whether to ensure that the product contains no meat or, if it does contain meat, that the meat therein is of high quality.
As one might expect, with the various requirements for the manner in which the animal is killed and the blood removed, and the attendant oversight to certify that these requirements have been met, kosher meat costs a pretty penny more than comparable non-kosher meat.
Despite the significantly higher price of kosher meat, kosher meat’s reputation for being healthier than non-kosher meat didn’t escape the notice of two “inventors”, who apparently thought that appending the moniker “kosher” to pet food might be a good way to make and market such products. (They certainly weren’t motivated by religious conviction, as kashrut doesn’t apply to feeding one’s pets: it’s fine to feed the pooch pork. The only restrictions with which such a pet owner has to concern himself are making sure that the food does not include meat that has been cooked with milk, and, on Passover, that the pet food does not contain any “chometz”, i.e. one of five grains that have leavened, but those are restrictions that apply to the pet owner, not the animal.)
So these “inventors” applied for and – don’t ask me how, the file history isn’t available on PAIR – less than six months later received U.S. Patent No. 6277435, “Kosher Meat-Based Pet Food Products”, and assigned it to a Florida-based company called, appropriately enough, “KosherPets LLC”. (TARR shows that a U.S. trademark for “KosherPets” was registered to the inventors in 2003 but cancelled in 2009. Interestingly, it appears that an Israel patent application corresponding to the ‘435 patent was never filed, let alone granted.) The ‘435 patent has three claims:
- A pet food composition comprising from about 15 to 60 weight percent of kosher meat wherein the kosher meat is from a healthy animal, is washed in cold water and salted, said composition further comprising a source of carbohydrates, a source of fiber, a source of fat and at least 2.44% omega-6 fatty acids and at least 0.49% omega-3 fatty acids.
- A pet food in accordance with claim 1 wherein said carbohydrate source consists essentially of rice and flour, said fiber source consists essentially of carrots and said fat source consists essentially of a kosher meat source.
- A pet food in accordance with claims 1 or 2 where all ingredients used are certified kosher and the method of preparation is in accordance with kosher guidelines.
Questions regarding the validity and scope of the claims practically jump off the page. What, for example, is the effect of the phrase “the kosher meat is from a healthy animal, is washed in cold water and salted” in claim 1 or “and the method of preparation is in accordance with kosher guidelines” in claim 3? Do these phrases render their respective claims hybrid product/process claims, and therefore invalid as indefinite per the CAFC’s holding in IPXL v Amazon? Does the inclusion of the term “healthy” in describing the animal from which the meat is taken render the claim indefinite in accordance with Datamize v Plumtree Software?
Or perhaps the phrases make these claims product-by-process claims, in which case, per the CAFC’s en banc Abbott v Sandoz decision, the process limitations have to be ignored in assessing the patentability of the claim but accounted for in making an infringement determination? If one ignores the process limitations, claim 1 reads, “A pet food composition comprising from about 15 to 60 weight percent of meat, said composition further comprising a source of carbohydrates, a source of fiber, a source of fat and at least 2.44% omega-6 fatty acids and at least 0.49% omega-3 fatty acids”. I’m no expert in the field of pet food, but it’s hard to believe that in all the years prior to the filing of the patent application, no one fed their pet a food composition matching that description. Indeed, if the phrase “pet food” in the preamble is ignored, as it probably should be, we’re left with a claim on a composition containing meat, carbohydrates, fat and a certain percentage of omega-6 fatty acids and omega-3 fatty acids. One suspects that such a food product has been known; chicken pot pie might meet these criteria.
Evidently, sometime after being granted the patent the inventors became aware of some of the patent’s shortcomings, because they subsequently filed a follow-on application, no. 10/273,463, which published as US 2004/0076735. The three claims of this application are similar to but different from those of the patent:
- A pet food composition comprising from about 5 to 60 weight percent of kosher-species animal protein, said composition further comprises a source of carbohydrates, a source of fiber, a source of fat, and at least 2.50% omega-6 fatty acids and 0.25% omega-3 fatty acids.
- A pet food in accordance with claim 1 wherein said carbohydrate source consists essentially of grains EXCLUDING wheat, barley, rye, oats, spelt, or their derivatives, said fiber source consists essentially of vegetables and said fat source consists essentially of a kosher-species animal fat source.
- A pet food in accordance with claims 1 or 2 where all animal protein ingredients used derive from a kosher species and neither the food, nor the utensils used, come in contact with dairy products throughout the preparation process.
Claims 1 and 2 recite structural limitations, making them an improvement in some ways over the patent claims - it’s hard to assert that the term “kosher-species animal protein” is indefinite or mixes product and process steps, although claim 3 falls into the latter trap. In any event, specifying that the meat is that of a kosher species, rather than stating that is kosher, means that the claims encompass the use of non-kosher slaughtered meat from kosher-eligible animals, something that the patent claims don’t do (see below). Claim two specifically excludes the five grains that can become chametz, again in a structural manner; and claim 3 tries to exclude meat that has been processed with milk. Unfortunately for the inventors, their own ‘435 patent was cited as published prior art in an obviousness rejection against this application, which was abandoned by non-response to the first office action. (Frankly, as with claim 1 of the patent, one wonders if claim 1 of the application as written is novel – pet food containing beef or chicken and other ingredients has been known for a long time.)
Notwithstanding any concerns KosherPets might have had about the validity of the claims actually granted, as it recently filed a complaint in the Federal District Court for the Northern District of Illinois. The complaint alleges that ‘435 patent is now being infringed by a Chicago-area pet food manufacturer, Evanger’s Dog & Cat Food Company, with which KosherPets contracted to produce a line of pet foods under the name “KosherPets”. The products were to be manufactured in accordance with the “patented recipes” provided by the inventors, but the plaintiff alleges that Evanger’s didn’t follow the recipes, resulting in “inaccurate nutritional labeling” that led to recall of the products. According to the complaint, Evanger’s failed to correct the problem, “thereby terminating its relationship with KosherPets”, but “[a]fter termination of its relationship with KosherPets, without authorization from KosherPets, Evanger began selling KosherPets’ patented pet food under Evanger’s brand name.”
There are a number of curious aspects to this suit. For example, why are there are no state law torts asserted alongside the allegation of patent infringement, which is the lone assertion in the complaint? While the pet foods prepared in accordance with the recipes may infringe the patent, the recipes per se do not, so it’s possible that use of the recipes provided by the inventors may constitute theft of trade secrets (for example, if after filing for the patent, the inventors developed better ways of making the claimed pet foods, which ways were conveyed to Evanger).
Furthermore, even if the patent claims are found valid, those claims require that Evanger’s manufacture its products using meat that comes from kosherly-slaughtered animals and which has been washed and salted. If Evanger’s uses kosherly-slaughtered meat which still needs to undergo the washing and salting step – and such meat is sold in kosher butcher shops, clearly labeled as requiring washing and salting – then Evanger’s would avoid infringement. Moreover, fish do not require washing and salting prior to consumption, so presumably none of Evanger’s fish products infringe any of the claims. But then the filing of the ‘463 application suggests that KosherPets was and remains aware, at some level, of these challenges in asserting infringement of the patent, and possibly cognizance of the validity issues as well.
What I find most notable about this suit is the use the complaint makes of the phrase “kosher pet food”. As noted above, pets are not subject to the laws of kashrut, and it’s perfectly fine for a kashrut-observant person to feed Bingo bacon. Thus the phrase “kosher pet food” as used by the plaintiff implies that the pet food is kosher for people. Evanger’s, for its part, does not make such a claim: although it has a web page that proclaims “Evanger’s is Kosher”, that page goes on to say that the foods “do not combine any meat with dairy products and are chometz-free”, and that “The Chicago Rabbinical endorses these products as Kosher for Passover for animal consumption” [emphasis added]. These statements are consistent with what the CRC has to say about Evanger’s and certain other pet foods in its most recent guide for Passover food.
What this means it that, according to both Evanger’s and the CRC, it’s ok for the kashrut-observant pet owner to own these products and to benefit from them by feeding them to his pet; but there’s no statement or even implication that Evanger’s pet foods are kosher from the perspective of people who might want to (yeech) consume them themselves. And a perusal of the products listed on Evanger’s “kosher” web page indicates that at least some items are almost certainly NOT kosher as far as people are concerned: the freeze-dried beef hearts, for example, have presumably not undergone the blood removal process (broiling) necessary to be considered kosher for human consumption. Ditto for the products containing liver. And again, the filing of the follow-on ‘463 application suggests that KosherPets is at some level aware of these issues, but presses forward with its infringement suit nevertheless.
Indeed, given Evander’s proprietors’ past record – mislabeling of pet food, charges of stealing electricity and gas – and the relatively high cost of kosher-slaughtered meat, it would be surprising if the meat in Evanger’s “kosher” products came from a kosher slaughterhouse, and it seems likely that even a loose definition of “kosher” doesn’t apply to the meat. Which would be another reason for finding no infringement. (No speculation here on whether not such a defense might expose Evander’s to consumer wrath or further FDA investigation.)
The blurring of the meaning of the term “kosher” could prove to be the plaintiff’s undoing in another way: if Evanger’s can put the court in the position of having to decide whether or not the meat Evanger’s uses is kosher, the court may simply say that this is a religious dispute, and therefore, under the First Amendment, it lacks jurisdiction, and wash its hands of the case. Without salting them.