DietGoal demolished, but more trolls are on the loose

App developers, restaurants, hotels, nutrition advocates and foodies should celebrate  “DietGoal is Dead Day,” after a federal court in New York invalidated a patent that DietGoal Innovations, LLC relied on to apparently bludgeon dozens of companies into paying millions of dollars in unjustified patent royalty payments. 

The DietGoal patent – which was approved by the U.S. Patent Office in 2003 – purportedly granted the company broad exclusionary rights to virtually every manner of digitally based presentations of menu options, recipe customization, nutrition and calorie calculators, meal planners, and other generic food-related concepts.  DietGoal relied on the patent to file dozens of lawsuits against brand-name restaurants, digital startups, grocery stores, food manufacturers, weight management companies and health information providers. 

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Many lawsuits were resolved quickly, undoubtedly because companies chose to pay unjustified royalties that cost less than a righteous defense against a patent troll. Fortunately, NBC Universal’s Bravo Network did not back down, and fought to the finish when DietGoal sued the network's Top Chef television program and associated Bravo website.

The great news for food and hospitality innovators and their app developer partners is that the court – following recent guidance from the U.S. Supreme Court – invalidated the patent and confirmed that basic concepts like meal planning simply are not patentable, even if implemented in software and using a computer. The bad news for America is that multiple-victim patent abuse trolls are still on the loose, and are expanding their aggressive assertions and enforcement according to a just-issued PWC report. 

The Patent Office does great work for the American people and approves thousands of high-quality patents to deserving inventors.  But due to budgetary constraints and other limitations, thousands of meritless patents like the DietGoal patents have been approved and they wreak havoc on American entrepreneurs when they fall into trolls’ hands. American business – particularly small companies and startups like the majority of App Developers Alliance members – cannot afford two years and millions of dollars in legal fees to fight against every patent troll.

In 2014 the Congress seemed likely to help when the House of Representatives approved broad patent reform legislation.  The Senate was also heading down the legislative path until Majority Leader Harry Reid (D-Nev.) reportedly told reform proponents that the bill would never be considered for a vote – and so ended broad patent reform this Congress. Fortunately the administration continues to focus on using its regulatory authority to improve Patent Office performance and patent quality, but that will not solve the problem.

The DietGoal story demonstrates why Congress must quickly return to comprehensive patent reform legislation early in 2015, and the importance of including provisions that enable cleansing our otherwise great patent system of DietGoal-like patents that never should have been approved.  In addition, Congress could consider nullifying pre-existing licenses and requiring repayment of royalties that were paid when the serial troll's patent is invalidated, as in the DietGoal case. Many millions of dollars would be returned to the economy if trolls’ ill-gotten gains are disgorged when someone finally fights back and a court invalidates the patent.

Thanks to NBC and its Bravo Network, an entire industry has been saved from an aggressive patent troll that used a poor-quality patent like a bludgeon. In 2015 Congress should help all innovators by passing comprehensive patent reform quickly.

Potter is president of the Application Developers Alliance.

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