Thursday, April 23, 2015

Inventing Steak-Umms and popcorn chicken; the patenting of food items

Eugene Gagliardi invented Steak-Umm [ At 3 in the morning, he had an idea. He got up out of bed and went to the plant and tried it. His idea was complicated — he put the meat through the grinder a bunch of times, then he mixed it, put it in a mold, froze it, then he tempered it, then sliced it — and, finally, he cooked it and ate it to see if it was any good. ] He also invented the original popcorn chicken, disclosed in US 5,266,064. Some of his other patents are mentioned below.

[As to other aspects, see GAGLIARDI v. TRIFOODS INTERNATIONAL, INC., 683 A.2d 1049 (Del. Ch. 1996) . IPBiz had covered the death of Edwin Traisman, the inventor of what became McDonald's frozen French fries; see ]

Some patents of Gagliardi:

**US 7,857,687 titled Disk-like steak product having a plurality of truncated pie wedge shaped portions

First claim: A steak product made by cutting a piece of meat which is initially generally in the shape of a parallelepiped comprising the steps of: cutting the meat along four generally curved first cut lines extending generally parallel to the grain of the meat to remove four corners of meat and to thereby create a meat portion which is generally cylindrically shaped and elongated; cutting the generally cylindrically shaped meat portion along each of a plurality of generally parallel second cut lines, each of the second cut lines being generally perpendicular to the grain of the meat and being spaced from each other by a first predetermined distance to create a plurality of disk-like cylindrical meat portions each having a predetermined thickness corresponding to the first predetermined distance and each having a predetermined diameter corresponding to the diameter of the cylindrically shaped meat portion; and cutting at least one of the disk-like meat portions along each of a plurality of third cut lines, each of the third cut lines extending generally radially inwardly from a curved outer circumferential edge of the at least one disk-like meat portion toward but not entirely through the axial center of the at last one disk-like meat portion to create an uncut center portion, the third cut lines being circumferentially spaced apart by a second predetermined distance to produce a steak product having a plurality of generally truncated pie wedge shaped portions held together by the center portion.

**US 7,780,507 titled Method of cutting beef short ribs and beef products produced by the method

First claim: A method of cutting beef short ribs to create beef rib products having enhanced per pound value, the short ribs comprising a plate having a plurality of rib bones taken from between the fifth and thirteenth ribs of beef and the meat surrounding the rib bones, the short ribs having a first, generally concavely shaped inside surface and a second generally convexly shaped outside surface, the method comprising the steps of: separating the short ribs into a plurality of generally equally sized individual rib meat portions, each having a rib bone, by cutting completely through the short ribs from the first surface to the second surface along cut lines extending generally midway between and generally parallel to the rib bones; and making a series of generally parallel cuts into the meat on at least one of the first and second surfaces of each of the rib portions, the cuts made into each rib portion extending generally perpendicular to the rib bone along the entire length of the meat from one end of the rib bone to the other end of the rib bone and being spaced apart from each other by a first predetermined distance.

**US 7,134,958 titled Method of making bird wing and breast products and products made in accordance with the method

First claim: A method of cutting a whole bird to form bird meat products comprising: removing a portion of the wing of the bird including the wing tip section and the center, two bone section; removing the breast and the drumette of the wing from the remainder of the bird leaving the drumette attached to the removed breast; and cutting through the removed breast along a cut line extending approximately one third of the distance along the length of the removed breast and generally parallel to the bone of the removed drumette to create a breast product and a breast/drumette product.

** US 6,428,838 titled Method for making a food product from the thigh of a bird or other animal and a food product resulting therefrom

First claim: A method of making a food product, comprising: selecting a thigh of an animal, the thigh comprising a thigh bone at least partially surrounded with thigh meat, the thigh bone having a first end and a second end; partially deboning the thigh causing the first end of the thigh bone to extend from the thigh meat to form a handle for holding the food product, the thigh meat being generally positioned proximate to the second end of the thigh bone after the partial deboning; and forming a plurality of cuts in the thigh meat, the plurality of cuts forming a plurality of sections of thigh meat extending from an uncut portion of the thigh meat which is generally secured to the second end of the thigh bone, the plurality of sections simplifying the removal of individual portions of the thigh meat from the thigh.

US 6,238,281 titled Method of making a bird meat product

First claima: A method of making a meat product from a bird, comprising the steps of:

cutting a first boneless breast lobe from the bird;

cutting a second boneless breast lobe from the bird;

cutting each of the first and second boneless breast lobes lengthwise into at least two boneless breast portions;

cutting a first whole leg from the bird;

cutting a second whole leg from the bird;

removing the bones from the first and second whole legs;

cutting each of the first and second whole legs lengthwise into at least two boneless leg portions, each leg portion containing both thigh meat and drumstick meat; and

assembling the boneless breast portions and the boneless leg portions to simulate the appearance of a bird.

co-assignee: Bojangles' International, L.L.C. (Charlotte, NC)

**US 5,976,608 titled Method for cutting a pork butt to provide pork products with enhanced value

First claim: A method for cutting a pork butt to provide pork products, the method comprising:

removing the blade bone from the butt;

locating and identifying the principal shoulder muscles of the butt;

cutting along one or more seams extending through the butt and around portions of at least one of the shoulder muscles to remove at least one principal shoulder muscle from the remainder of the butt;

denuding the removed shoulder muscle by removing all cartilage, fat, connective tissue, membrane, and other non-muscle material from each outer surface thereof to provide a solid pork muscle; and

feeding the denuded shoulder muscle through a meat grinder having an output plate which includes a plurality of elongated slot-like openings such that the ground pork emerging from the output plate comprises a plurality of relatively thin ribbon-like strips, the strips thereafter being placed in a hot sauce.

***As to the invention of Steak-Umm, note GAGLIARDI BROS., INC. v. CAPUTO , 538 F.Supp. 525 (ED Pa 1982), which includes text


Plaintiff, Gagliardi Bros. Inc. (Gagliardi), a Pennsylvania corporation with its principal place of business in Pennsylvania, is in the business of processing and marketing portion controlled meat products, including but not limited to a sliced sandwich steak marketed under the trade-name Steakumm, for sale to retail, institutional, and restaurant outlets. Gagliardi was a family owned business until February, 1980, when it was sold to a subsidiary of H. J. Heinz Company (Heinz). Eugene Gagliardi, Sr., the founder of the business, remains active in its affairs, and his sons Nick and Ralph are Vice Presidents. The current President and Chief Executive Officer is Richard A. Blott (Blott), a Heinz manager.

Defendant, Dan J. Caputo (Caputo), is a 53 year old individual residing in Delaware and was employed as a controller by Gagliardi from September 1972 until his termination on July 7, 1981. As its controller Caputo was one of Gagliardi's key employees, and attended all Board of Directors (pre-1980) and Management Board (1980 to 1981) meetings. As a result of his responsibilities at Gagliardi, Caputo became familiar with Steak-umm and its beef formula and fat content, information also obtainable by means of chemical analysis. He knew also that Gagliardi had spent hundreds of thousands of dollars developing modifications and improvements to Steak-umm, and to develop a new sophisticated steak slicing machine and an improved, innovative packaging. These developments are trade secrets of competitive value which Gagliardi has a financial interest in keeping confidential. Caputo also knew of valuable, confidential marketing research studies conducted on behalf of Gagliardi with regard to consumer rating of sandwich steak characteristics. At no time did Caputo deal with Gagliardi customers.

When hired by Gagliardi in 1972, Caputo did not execute any employment contract. In November 1974, following rejection of its patent application for Steak-umm, Gagliardi required Caputo, as well as several other employees, to sign such contracts. Caputo thus executed a two-page document entitled "Reappointment as Comptroller and Raise in Salary", together with a written Addendum. If he had not, his employment would have been terminated. Neither Caputo's job title nor duties changed at that time. Caputo did receive a $50.00 per week, $2,600.00 annual increase in salary at approximately the time he executed the contract. Similar increases were paid him in May, 1974, May, 1975, and October, 1975. Furthermore, in pertinent part, the contract provided as follows:
You further agree that in the event of termination of your employment, with or without cause, you shall not, for a period of one year after termination of said employment, either directly or indirectly, enter into the portion controlled meat business, nor will you enter into the employ of anyone who is engaged in a similar business within one hundred miles of West Chester, Pennsylvania.


The one year restriction on employment although perhaps reasonable in the sense of not being excessively long, nevertheless bears no reasonable relationship to the protection of Gagliardi. For one, there is no evidence to show that Gagliardi would in any way be harmed by permitting Caputo to work for Devault before a year has passed. Indeed, there has been no showing that there is any information which Caputo may possess and which might be revealed to a new employer to the detriment of Gagliardi. Gagliardi has not established that Caputo has any technical knowledge regarding the new slicing machine technology, innovative packaging, or marketing data, from which Devault, or some other competitor of Gagliardi, could develop and produce a new slicing machine similar to that contemplated by Gagliardi, or institute use of the new innovative packaging planned by Gagliardi before Gagliardi could itself make that packaging available, or devise new marketing strategy based on the results of the market research conducted on behalf of Gagliardi. In addition, Gagliardi has not established that Devault could change its beef formula based on any information it might receive from Caputo which it could not otherwise discover through, for example, chemical tests.

Caputo's expertise is as a controller, not as an engineer, designer, marketing analyst, or chemist. His general knowledge about Gagliardi poses no real threat to Gagliardi, so that a time limit on his employment eligibility is unnecessary and unreasonable.

As for the 100 mile limit, that restriction no longer makes sense. Caputo could work for a competitor of Gagliardi beyond that limit. Since Gagliardi's marketing area is no longer confined to that 100 mile radius, as it was when the covenant was imposed, even if there is the need to protect it, a showing which we have determined has not been made, there is no reason to think that such protection could not be needed as to those other marketing areas. The conclusion we draw is that restricting Caputo's employment opportunity to the 100 miles of West Chester radius is not reasonable when the Gagliardi marketing area is no longer so restricted, regardless of what might have been the reasonableness of such a geographic limitation when the covenant was established.

Additionally, it is significant that imposition of a restrictive covenant has not been required of employees of Gagliardi since 1977, yet its business has grown considerably since that time. Thus, neither Caputo's successor, nor even as vital an executive as Gagliardi's President, Mr. Blott, are subject to restrictive employment covenants. Unless we are to believe that only Caputo can hurt Gagliardi by working as a controller for a competitor, this evidence strongly suggests that Gagliardi, despite the initiation of this action, does not perceive any need for the imposition of restrictive covenants, or else others would be subjected to agreements such as that sought to be enforced here.

Finally, we consider the fact that Caputo received but rejected employment offers which would have required relocation, and that he and his wife operate their own accounting service. As the above cited cases make clear, the focus of an inquiry on the issue of enforcement of a restrictive covenant is on the reasonableness of the covenant itself, and on the employer's need to enforce it, and on the ancillary agreement and consideration which support it.
[538 F.Supp. 530]
The availability, or lack thereof, of alternative employment opportunities or sources of income is not a direct factor to consider. Of course, the obvious hardship of a restrictive covenant in preventing an individual from earning a livelihood, is the basis of the law's disfavor of such agreements. See, Minnesota Mining and Manufacturing Company v. Prosceno, slip op. at 5; Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). This is so regardless of the particular financial circumstances of the employee against whom it is sought to be enforced.

Since we find the restrictive covenant unenforceable, there is no basis for issuance of an injunction, and judgment is entered in favor of the defendant and against the plaintiff.



Note that Gagliardi also holds design patents, e.g., USD293041.


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