A question about patent law

A friend of mine recently sent me this article about an Italian restaurant that is selling ice cream made with liquid nitrogen. The article also mentions, with no detail, that they are seeking a patent. My organization (which is in the US), and many others in our line of work have been doing this as a gimmick for years, and we have documentation. Is this a patentable product? Could this affect my use of LN for ice cream? Is there anything I should do to protect myself? Thanks!

You cannot get a patent in the US for an invention that has been known and used by others for more than a year. Unless there is some special, nonobvious way that they are using the LN2, they should not be able to get a patent on it - the mere idea of liquid nitrogen ice cream has been known for decades. (And if they do get a patent through some kind of mistake, it should be unenforceable). If they do have some special way of doing it, their patent would be limited to that way, and you should probably be able to avoid infringing it.

If someone threatens you with litigation or asks for a license, you obviously should consult a patent lawyer for advice. If you’ve just heard that they’re “seeking” a patent (not that they have one), I wouldn’t be too concerned at this stage.

You can search issued patents and published applications online at http://www.uspto.gov.

The issue should be whether they can get a patent for something that has been disclosed publicly.
If you can document that you have been using some method and have allowed others in the public (ie not part of your organization practicing secrecy) to see that method, they can’t patent it - at least not in the US. So in this case I am certain they could not force you to stop what you have been doing.
However, you could spend lots of money fighting this in the courts. And you might have questions about what constitutes disclosure, or whether you should take any action now to avoid greater expenses later, et cetera. You really should ask a lawyer, I think, if you can do that more easily than living with this uncertainty.

They may be seeking a patent on the setscrew for the stir rod, not the entire process.
Lots of patents are done on minor components because then the Patented lable can appear, and most casual observers are scared off of the whole process, while only an insignificant part is really covered.

Katie bar the door wrote

Yes, in fact, I’d say not “may” but “are”. The nature of patents is that you take your core idea and both try to patent as wide and as narrow as you can. I.e. you’ll patent adding any sort of gas to ice cream, adding nitrogen to any frozen food, adding nitrogen to any frozen item, etc. And you’ll patent a type of nozzle that works best for injecting it, a certain process, etc.

On a practical level, it’s unlikely you’ll ever have problems, especially if you’re a small operation. If you’re Breyers or something, you’d be wise to bring in legal help, but then if you’re Breyers, you already have and are well on your way to patenting what you can.

If you’re paranoid, you may want to keep any sort of documentation you can on the subject, including ads you may have printed, maybe even photographing you or an employee building one of these super sundaes, etc. If you’re really concerned, you can contact a lawyer.

As another point of documentation, by the way, a recipe for liquid nitrogen ice cream showed up in Fox Trot some months back. This Italian restaurant is going to have a hard time claiming that something was a trade secret if it’s already made the funny pages.