A Startup Runs Into A Patent on Picture Menus

If you’ve ever seen a picture menu, you’ve seen the supposed ‘invention’ claimed by U.S. Patent 6,585,516. Although it had a complex-sounding title (“Method and system for computerized visual behavior analysis, training, and planning”), the patent simply claimed using picture menus on a computer. Patent troll DietGoal Innovations, LLC, sued over 70 companies for supposedly infringing this ridiculous patent.

DietGoal sued over 70 companies for supposedly infringing its patent on picture menus.

Beginning in 2011, DietGoal began a nationwide litigation campaign, suing restaurants ranging from Dunkin’ Donuts to Sweetgreens. It also attacked media companies like Time and Seventeen Magazine.

Even companies that weren’t sued felt the impact of its litigation campaign. For example, although it was not named directly, a company called Nutritionix was dragged into the dispute when DietGoal sued one of its customers for using a calorie counter app. Nutritionix offers its nutrition calculator and database to restaurants, so that they can offer their guests more accurate nutrition information. At that point, Nutritionix was a tiny startup with only seven employees. It found its entire business threatened by the litigation.

As DietGoal’s litigation dragged on, Nutritionix found it increasingly difficult to grow its business. Matt Silverman, Nutritionix’s managing partner, explained that many restaurant chains decided not to offer a nutrition calculator at all rather than face a risk of a lawsuit. Other companies became reluctant to adopt a nutrition calculator without a promise of indemnification against patent suits. This is an overlooked way that patent trolling threatens smaller businesses. Companies fearing patent suits chose large vendors because they are more likely to be able to afford expensive patent litigation. This cuts out small businesses and startups.

Fortunately for Nutritionix, the Alice v. CLS Bank decision arrived before it was too late. Before Alice, DietGoal had been able to drag out its lawsuits for years. But just days after Alice was decided, a district court judge in New York threw out DietGoal’s patent. The court ruled that DietGoal’s patent claimed nothing more than the “conventional and quotidian tasks” of selecting meals. It found that using a generic computer to display options on a picture menu did not add anything that transformed the abstract idea into a patent-eligible invention. DietGoal appealed to the Federal Circuit but lost there too. This was a straightforward application of Alice and it finally ended a massive campaign that surely cost millions in legal fees.

With the patent threat over, Nutritionix grew from 7 to 15 employees. It has expanded beyond app development to collecting and licensing nutrition data. Matt explained that Alice helped not only with putting the DietGoal litigation behind it but reduced the risk of future suits. When patents can be as broad as abstract as a picture menu on a computer, the only way to avoid infringement is to avoid software development altogether. After Alice, startups like Nutritionix have a better chance to thrive.