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EM BAGELS, LTD. v. BAGEL EMPORIUM OF ARMONK

February 28, 2000

EM BAGELS, LTD., PLAINTIFF,
V.
BAGEL EMPORIUM OF ARMONK, INC. (SUED AS HOWARD ROZINS & MICHAEL ROZINS, D/B/A BAGEL EMPORIUM), DEFENDANT.



The opinion of the court was delivered by: Brieant, District Judge.

MEMORANDUM & ORDER

By motion filed January 27, 2000, heard and fully submitted on February 25, 2000, Bagel Emporium of Armonk, Inc., defendant in this patent infringement action, moves for summary judgment pursuant to Rule 56, Fed.R.Civ.P. based on non-infringement. Defendant also seeks an award of attorneys' fees pursuant to 35 U.S.C. § 285. Plaintiff filed opposition papers on February 17, 2000, and February 23, 2000. Defendant filed reply papers on February 22, 2000.

Patent No. 5,759,606 ("Patent 606") issued to Plaintiffs assignors Bruce A. Kade and Robert W. Brown (the "Inventors") on June 2, 1998, for a "Method of Preparing Bagel Dough to Form an English Muffin Bagel." The application was filed June 24, 1996.

The Bagel

The origin of the bagel is unclear and there are many proposed explanations as to when and where the bagel first appeared. The earliest printed reference to a bagel is in the 1610 Community Regulations of Cracow, Poland, which stated that a bagel was to be given as a gift to a woman in childbirth. See Bagels — Home Cooking at http://homecooking.about.com/food/homecooking/library/weekly/aa0 11998.htm?rnk=r & terms=bagels citing Rosten, Leo, The Joys of Yiddish. A popular origin story attributes the creation of the bagel to a Viennese baker who wanted to honor Polish King Jan Sobieski's defense of Austria from Turkish invasion. The king was a skilled horseman and so the baker made ringed dough resembling a stirrup. The Austrian word for stirrup is Beugel. Bagel History at www.skokiebagels.com/history.html ("Bagel History"); Merrow, Anne The Round Roll with the Hole, www.princeton.edu/-eclectic/fall95/reporter/bagel.html. As this event occurred in 1683, it is more likely the first commercial bagel production as opposed to the first actual bagel. Another source claims that in the seventeenth century bagels were readily available in Russia. These bagels, called "bubliki," were sold on strings to take advantage of their shape. See Merrow, supra. Another source suggests that the bagel is of American origin, like chop suey, and was developed in the United States in the style of the breads described in the foregoing origin stories. Id. Other writers trace the bagel to Israel, Poland, or Hungary. Id.

The traditional bagel is a doughnut shaped hard roll made of raised dough which is boiled first and then baked in an oven. For many years, the art of bagel making was a closely held secret. The International Bakers' Union, founded in New York City in 1907, guarded the secret and permitted only sons of members to be apprenticed to the trade. The International Bakers' Union has since disbanded, and methods of bagel making are readily available to the public. A standard bagel is made from flour, water, sugar, salt, and active dry yeast. See Pastry Wiz Recipe Archive at http:www.our-dailybread.com/recipes/whatisa.htm; See also United States Patent No. 5,759,606 ("Patent 606"), Col 2, lines 25-35. Traditional bagels were sometimes seasoned with seeds or spices baked directly into the surface of the bagel, such as poppy, sesame, onion or garlic. Modern bagel makers have also developed more exotic flavorings, such as whole wheat, egg, rye, chocolate, jalapeno and cheese, raisin or blueberry.

The English Muffin

The English muffin may have been derived from the Welsh "Bara Maen." The "Bara Maen" was a leavened cake baked in the 10th Century on hot stones. See The Origin of Thomas' English Muffins www.bestfoods.com/profile_history_thomas.htm. In early 19th Century England, servants made a similar item by baking a mixture of leftover bread and biscuit dough and mashed potatoes on a hot griddle. See History of Bays English Muffins www.bays.com/info/history.html. Originally, only servants ate the muffins, but eventually they became popular at all levels of English society. Id. The English muffin was most popular in Great Britain in the period preceding World War I, and for many years they were sold door to door by the "muffin man." Id. English Muffins became common in the New World when Samuel Bath Thomas began the sale of English Muffins in about 1880 in his New York City bakery, according to a recipe he brought with him from Plymouth England in 1875. The Origin of Thomas' English Muffins, supra. The English muffin is made from flour, sugar, salt, milk, butter, water, egg and active dry yeast. See Clayton, Bernard, Bernard Clayton's Book of Small Breads, (Simon & Schuster 1998). The dough is left to rise for a long time in order to produce the distinctive porous texture which is the basis for the muffin's popularity. Id; See also Patent 606, Col 1, line 29-32. The dough is placed upon a hot griddle and turned repeatedly until the English muffin is brown and springy. Clayton, supra. English Muffins do not have the characteristic center hole found in bagels.

The Patent

Patent 606 contains three claims. Claim 1 of Patent 606 describes:

A method of preparing bagel ingredients to form an English muffin bagel, comprising the following steps

a) mixing a bagel-dough mix;

b) kneading said bagel-dough mix;

c) letting said bagel-dough mix rise in a warm environment for a first period of time sufficient to ...

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