Thursday, April 07, 2005

Full Employment

Let yet another chapter be written in the Patent Attorney's Full Employment Act:

For a copy of the PB&J sandwich patent, click here.

Peanut Butter And Jelly Case Reaches Federal Circuit

IP Law Bulletin (Thursday, April 07, 2005)--In one of the more surreal cases to reach the U.S. Court of Appeals for the Federal Circuit in recent years, a panel of three judges heard arguments Wednesday over a patent for a peanut butter and jelly sandwich. Lawyers argued before the federal appeals court about whether J.M. Smucker Co.'s method for making so-called “Uncrustables” -- sealed, crustless peanut butter and jelly pockets -- is worthy of patent protection.

In December 1999, Smucker obtained patent rights on a "sealed, crustless sandwich" it acquired from a pair of inventors in Fargo, North Dakota. But when Smucker tried to expand its patent rights with new applications before the U.S. Patent and Trademark Office, the situation quickly got sticky. A patent examiner handling the case rejected the company's requests, citing a 1994 article from a Wichita, Kansas newspaper on back-to-school tips that offered the layering approach as a way for parents to keep peanut butter and jelly sandwiches from getting soggy. It is "obvious for one ... to apply peanut butter on the bottom slice of bread ... add jelly ... and apply another layer of peanut butter on top of the jelly,” the examiner concluded.

The USPTO’s appeals board upheld the decision, concluding that the “Uncrustables” process is no different from making ravioli or pie crust.The board said it based its opinion in part on international tart recipes from an undated pastry cookbook and the "Tartmaster," a device mentioned in the book that is used to cut and seal bread.

Smucker appealed the decision to the Federal Circuit, which heard oral arguments on Wednesday, shortly after lunching on conventional PB&J sandwiches. Key to the discussion at Wednesday’s hearing was whether the sandwiches were “smushed” or “compressed.” Robert Vickers, an attorney with Fay, Sharpe, Fagan, Minnich & McKee LLP who represents Smucker, told the judges that the sandwich's edge isn't made like the tarts or raviolis shown in a cookbook cited as prior art.

"So it's smushed!" Judge Raymond Clevenger III declared, according to a transcript in the Wall Street Journal."It is sealed by compression, but it is not smushed," Mr. Vickers explained, according to the newspaper.Vickers also said the sandwich is novel because the filling "encapsulates" jelly between two larger layers of peanut butter, the Wall Street Journal reported. Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child's peanut butter and jelly sandwiches to keep the filling from oozing out. "I'm afraid she might be infringing on your patent!" he said.

The frozen, disc-shaped sandwiches, marketed as lunch-box fare, have been one of Smucker's most-successful products. They generated sales of $27.5 million in 2004, according to Information Resources Inc., a Chicago company that tracks sales in supermarkets, not including Wal-Mart stores. A decision isn’t expected in several months.