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Foreseeability and obviousness

By Lawrence B. Ebert, Esq.

In an article about possible changes to McDonalds "dollar menu," one has the text:

Lower-priced beverages, including $1.89 iced coffee and a $1 fountain-drink and sweet-tea promotion, have pulled some sales away from the espresso drinks, which range from about $2 to $3. That was something the company hadn't anticipated, he [Don Thompson, president of McDonald's U.S. business] said.

Hmmm, if the president of McDonald's US business could not foresee that lower-priced beverages might be substituted for higher-priced beverages, especially in a bad economy, what does that say about the use of foreseeability in obviousness-determinations in patent law? It is always easy to see the right path in hindsight.

On the other side of the coin, was the "paper or plastic" claim of IBM's 7,407,089 obvious -->

A method of determining a customer's packaging preference in a conventional point-of-sale retail location, wherein the point-of-sale retail location includes a person who performs the packaging of items purchased in the point-of-sale retail location for the customer, comprising the steps of: identifying the customer using a customer identifier; and retrieving available container packaging preference information for the purchased items using the customer identifier for the identified customer.

The background of the '089 patent states:

In retail locations such as grocery stores, liquor & wine stores, hardware and department stores, customers typically must pass through a cashier station to pay for items they wish to purchase. At the cashier station, the cashier may package the purchased items for the customer so that the customer can conveniently carry the items out of the store. If different packaging options are offered, the customer may have a preference as to the type of packaging desired. However, at conventional retail locations, the customer is likely to be asked for their packaging preference each time the customer passes through a cashier station, resulting in unnecessary inconvenience for both the customer and the cashier.

What is needed is a more flexible system and method for determining packaging preference that overcomes some of these limitations.

Full post as published by IPBiz on August 07, 2008 (boomark / email).