Patent on Notch in Rusk is Indeed Valid
Inventor sued again but has once more been proven right in court
When to take a look at the picture at the top of this page you see a "beschuit" which is a type of rusk, a typical Dutch traditional, round, twice-baked bread with a light, crispy texture similar to a cracker or biscuit. At the top of the rusk you can see a notch. That notch has been the subject of a years-long legal battle between the inventor of the notch, who patented it, and two large companies that produce rusk. What's the story here? A beschuit is a traditional Dutch rusk, typically enjoyed with butter and toppings like chocolate sprinkles, cheese, or fruit. Beschuit is often eaten at breakfast or served with tea, and it's especially popular during celebrations, such as the birth of a baby, when it's topped with butter and sugared anise sprinkles ("muisjes"). Beschuiten are usually sold in rolls, and many of them have a small notch or indentation along the edge. This notch is specifically designed to make it easier to remove the rusk from the packaging without breaking it. Almost everyone (at least in the Netherlands) knows the notch in the rusk as a clever invention. One of those "why didn't I think of that?" types of ideas. Although the invention is widely recognized, the inventor himself is less known. His name is Theo Tempels, a former Philips employee who, in 1999, grew frustrated with trying to extract a rusk from the packaging without breaking it. So, he used a round file to create a notch in a stack of rusks, put them back in the package, and had his wife test if it worked. And it did. Theo immediately saw the commercial potential of the invention and filed for a patent. The application not only describes the use of a notch in rusks but also in crackers. This maximizes the commercial potential of the patent. According to the examiners, the invention meets the three legal requirements for protection. These three requirements are novelty, inventiveness, and commercial applicability. And thus, the patent was granted. So far so good.
Theo reaches out to a few market players who might be interested in the invention. For instance, he approaches Bolletje, a well-known Dutch brand famous for its biscuits, rusks, and other baked goods, but they indicate that they see no potential in the idea, as customers wouldn"t want a product with a hole in it. Continental Bakeries (known for Haust, among others) goes a step further and bakes a trial batch. However, the notches are far too large, and the company immediately states that they see no future in it. End of the story (or so it seems).
About two years later, Bolletje makes a big splash by announcing a new and innovative product: a rusk with a notch to make it easier to remove from the packaging. Theo is stunned. This is his idea, and it's even patented! He contacts Bolletje, informing them that they are infringing on his patent. But Bolletje plays dumb, claiming they don't remember him presenting the invention two years earlier. The company insists they've been working on the idea for three years. And besides, isn't a notch something that can't be patented?
Is the Invention Truly Inventive?
Theo feels sidelined by the company, which at the time sells 16 million packs of rusks per year. Therefore, he decides to take a different approach: he seeks publicity and tells his story to as many media outlets as possible. He assumes that Bolletje will be deterred by the negative publicity and will therefore be willing to talk to him. However, things unfold differently. It is Bolletje that takes Tempels to court for portraying them in the media as a company that steals ideas. In a preliminary hearing, they demand that Tempels stop. Additionally, Bolletje declares in court that they believe the patent will undoubtedly be invalidated. But the opposite happens: the judge swiftly dismisses Bolletje's claims and sides with Theo Tempels on all points! The case was clearly judged as patent infringement. If Bolletje wants to continue using the notch, they will have to negotiate with Theo. This happens, and after some struggles (the company offers to buy the patent for what Tempels deems an insufficient amount), the two parties reach an agreement, granting Bolletje a license for Theo's invention. They also agree that Tempels is not allowed to disclose the exact per-roll royalty fee. Incidentally, it is said that he still lives in the same small house the Tempels family lived in before the invention. But, of course, that doesn't tell the whole story.
Inventor Taken to Court Again
However, the story doesn't end there. In the summer of 2016, Tempels was taken to court again, this time by Continental Bakeries (Haust), the company Theo had initially approached. According to this toast manufacturer, the invention did not meet the legal requirement of inventiveness, and therefore, the patent should be invalidated. Alongside the requirements of novelty and commercial applicability, the concept of inventiveness often sparks the most debate. What makes an invention inventive? The general guideline is that the solution should not be obvious to someone working in the same field. Since this is a pretty vague criterion, courts are often called upon to determine whether an invention is inventive. This was once again the case with the notch in the rusk. The court ruled, once again, that the invention did meet the legal requirement of inventiveness: a strong patent indeed. However, Theo wasn't able to enjoy his patent much longer. In 2019, the 20-year legal term of the patent expired, allowing anyone to use the notch in rusks and crackers. Hopefully for him, Theo had already secured his financial future by then.