If only there was a way to eat both together…

Joining the ranks of hybrid food combos such as the Cronut, Duffin and Cruffin this week was the Hamdog (click for image), an unholy alliance/mashup of genius (delete as appropriate) of a hamburger and a hotdog¹. What got IPcopy’s interest however wasn’t the culinary flair on display but the fact that seemingly every mainstream news outlet was reporting that the inventor (if that’s not too strong a word) of the Hamdog had “patented” his creation (see this BBC article by way of example).

The article in The Mercury goes further with the story and notes that the “inventor” Mark Murray was successful in “securing a US patent for the “combination hamburger hot dog bread bun” in 2009.” Mr Murray himself is quoted as saying “Everyone told me it wasn’t possible, because you’d need a patent lawyer and it would cost millions of dollars“.

Now this IPcopywriter may just be demonstrating the pedantic leanings of the average patent attorney but we couldn’t let this story pass by without comment, for Mr Murray has not “patented” his gastro-creation (in the sense that we’d normally use the word patent in the UK and Europe). Instead, as we’ll explain below, this “news” item is just another example of a particular type of terminology confusion that arises when reporting IP in the media².

To clear up the confusion it’s necessary to take a short detour and recap on the differences between patent and design protection.

A patent is a legal right enabling the owner of the patent to stop someone else making use of an invention. Patents are generally associated with technical inventions and so if you’ve ever developed something you think solves a technical problem then you may have a patentable invention!

Designs protect the shape and visual appearance of a product. Designs may be obtained for a three dimensional product (such as a tablet computing device like an iPad®)  or a two dimensional design, such as a pattern for application to a product. Products can include computer logos/symbols, typefaces as well as more traditional 3D objects.

Based on the above summary of patents and designs it should hopefully be clear that what Mr Murray has actually done is protect the shape and visual appearance of the bread bun for his Hamdog. In other words he has secured some form of design protection.

If that’s the case, I hear you ask, why do the news articles refer to him patenting the Hamdog?

Well, for that we probably need to turn to the terminology used in US law where confusingly the term “patent” can be attached to both designs and inventions. In the US, “utility patents” relate to inventions (what we in the UK/Europe would refer to as “patents”) whereas “design patents” relate to designs (what we’d refer to as “registered designs”).

Image from USD584478

The Hamdog patent referred to in the articles is actually USD584478, a US design patent which although obviously containing the word “patent” does not relate to the protection of a technical innovation. In fact, all that is protected by USD584478 is the look of the burger bun that Mr Murray has created to house his burger-hotdog fusion food.