Monday, June 23, 2014

Popsicle patent wars of yesteryear

Ministers, in sermons about sharing, frequently point to the story of the two-stick Popsicle. Sometimes the ministers mention that the Popsicle was invented by an eleven year old boy, Frank Epperson, in 1905. And during the depression, the two stick popsicle was introduced so that one could share.

There is a bit more to the story, which can be found at the post The Frozen Sucker War: Good Humor v. Popsicle written by Jefferson M. Moak.

Yes, there are patents, which arose in the 1920's, when commercial promise was demonstrated. The patents led to litigation, which in this case, led to agreements among the competitors. The key claims would be invalidated by 1938. The big story for patent practitioners is about defining terms, and what happens when there is ambiguity in terms in licensing deals. The companies that became the Good Humor Corporation of America and the Popsicle Corporation had patents in 1923 and 1924, numerous litigations, and finally an agreement between 1925 and 1932. Changing economics caused the 1925 agreement to go bad.

The early mover as to ice cream and the Good Humor company was one Harry B. Burt, who got the idea of inserting a stick into a chocolate-covered ice cream bar [such as the product Eskimo Pie] and created the Good Humor Bar. Burt got patents for a method of making, and the machinery to make.

One notes Burt stated "Our royalties are small, indeed far less than litigation would cost to be an infringer." Burt would then sue Citrus Products Company and the Popsicle Corporation, who made frozen water ices, not ice cream. Arguably, Citrus and Popsicle were competing more against cold drink companies than against ice cream companies. Sometimes the identity of your competitor is not so clear. Burt certainly was not a non-practising entity [NPE] but he did have an expansive view of the scope of his patent claims.

Two years AFTER Burt filed, Epperson filed on June 11, 1924 for a patent on the Popsicle process, which was granted two months later. He immediately sold all of his patent rights to the Popsicle Corporation on September 8, 1924. In August 1925, a deal was reached with the Joe Lowe Corporation over distribution of the popsicle product.

The relevant agreement came a few months later. This 1925 agreement was between Burt [the ice cream area] and the Popsicle Corporation [the frozen ice area] and was made on October 13, 1925. This deal would break down during the depression over a disagreement as to what was meant by sherbet, a possibly "in between" product, when Popsicle introduced the "milk popsicle."

Moaks wrote:

Both sides attempted to define the composition of a sherbet using dictionary terms and the belief of ice cream manufacturers of the times. Among Good Humor's definitions was that of a "flavored water ice." Popsicle countered by stating that its new "Milk Popsicle" was a sherbet in the understanding of the ice cream industry. From the manufacturer's viewpoint, an ice "is a mixture of water, sugar and flavor, while a sherbet is the same with the exception that the water is replaced with a milk product or, in modern practice, ice cream mix."

The district court judge concluded that the term "sherbet" in the 1925 agreement was strictly to mean a "water sherbet." Popsicle and Lowe lost. But the companies had already concluded a new agreement.

As to the ministers and sermons, the two-stick Popsicle was phased out in May 1986. The 1980's, in contrast to the 1930's, were a decade of greed. As to the origin of the two-stick popsicle, one source says company officials admitted the two-stick Popsicle was introduced during the Depression as a marketing ploy. The company thought it could win over customers by selling the frozen treat for a nickel and saying it could be split with a friend.
[source: Los Angeles Times, Popsicles to Get a New Look in May ]

One notes that the "sherbet war" arose because of price differentials; sherbet and "milk popsicles" could be sold for a nickel; ice cream cost a dime. Popsicles coat less than ice cream, but Popsicle sought to further cut into the ice cream territory with the "milk popsicle." Failing this gambit, Popsicle went with the "two stick" ploy.

As to the patents, relevant patents include 1,404,539, 1,470,524, 1,470,525, and 1,505,592.

the first claim of US '539, related simply to coated ice cream:

1. A confection comprising a core of normally 1iquid material frozen to a substantially solid state and sealed within an edible,
sustaining and form-retaining casing adapted to-maintain the confection in its original form durin handling.

US '524 was filed by Burt on Jan. 30. 1922. A 1938 case,ICYCLAIR, INC. V. NATIONAL POPSICLE CORPORATION, 94 F.2D 669 (9TH CIR. 1938) , notes:

The Burt patent 1,718,997 covers the product manufactured under Burt patent 1,470,524. Claims 1 and 2 of the Burt patent No. 1,470,524 cover the manufacturing process which involves placing the ice cream mixture in a container, partially freezing the same, then placing a number of sticks therein so that there will be a handle for each piece when subdivided, and then freezing the mixture until it is hard.


In regard to the Burt patent No. 1,718,997 (product patent), it is clear that a frozen confection on a stick is not a novel product in view of the fact that candy confections have been placed on sticks and marketed for many years.


We conclude that claims 1 and 2 of the Burt patent No. 1,470,524 and claims 1 and 7 of the Burt patent No. 1,718,997 are invalid because of lack of invention.

From what we have said it is clear that claims 2, 3, 4, 5, 6 and 7 of the Epperson patent No. 1,505,592 are likewise invalid for want of invention. The fact that Epperson by the device of placing the mixture to be frozen into individual molds was able to freeze the product much faster than Burt discloses no patentable process, even though it be conceded that a different form of crystallization was thus obtained.


Post a Comment

<< Home