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April 12, 2005

PB & J Wars — Smucker's goes down firing


Smucker's, seeking to expand its patent on Uncrustables — frozen, disk-shaped peanut butter and jelly sandwiches — presented its case last Wednesday before three judges at the U.S. Federal Court of Appeals.

Smucker's lawyer, Robert Vickers, argued that Smucker's Uncrustables are not simply "smushed," as Judge Raymond Clevenger III declared but, rather, "sealed by compression."

On such fine points do the fates of nations, much less nations' lunch box contents, hinge.

At one point another judge, Arthur Gajarsa, said 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!" exclaimed Judge Gajarsa.

Lawyers in the case thought the case might take several months to decide.

Here's Sara Schaefer Muñoz's entertaining story on the case, from last Thursday's Wall Street Journal.

    Patent Case Turns Sticky for Smucker

    Three federal judges yesterday questioned whether the method for creating a crustless, peanut butter and jelly sandwich is unique.

    The hearing, at the U.S. Court of Appeals for the Federal Circuit, was the latest round in J.M. Smucker Co.'s attempt to expand its patent on Uncrustables, frozen, disk-shaped peanut butter and jelly sandwiches that have been among the Orrville, Ohio, jam-maker's most successful products.

    The three judges explored the difference between bread that is "smushed" versus "compressed," and pondered the idea of jelly "encapsulated" in peanut butter.

    One even questioned whether his wife violated Smucker's patent when she made lunch for their child.

    There is no deadline for the court's decision, but lawyers in the case said it could take several months.

    Smucker obtained patent rights on the sandwich in 1999, and set out to expand them with new applications before the U.S. Patent and Trademark Office.

    But a patent examiner handling the case rejected the company's requests.

    The Patent Office's appeals board upheld the decision, declaring the sealed sandwich wasn't new, and citing, among other things, a pastry cookbook that shows how to seal the edges of tarts and stuffed pasta.

    Yesterday, Smucker lawyer, Robert Vickers of Fay, Sharpe, Fagan, Minnich & McKee LLP of Cleveland, argued that the sandwich's edge isn't made like the tarts or raviolis shown in the cookbook.

    Instead, he said, the bread retains its original characteristics but its edges are compressed.

    "So it's smushed!" Judge Raymond Clevenger III declared,

    "It is sealed by compression, but it is not smushed," Mr. Vickers explained.

    Mr. Vickers also said the sandwich is novel because the filling "encapsulates" jelly between two larger layers of peanut butter.

    But the judges weren't sure how the "encapsulated" filling makes the Smucker sandwich different from other versions.

    At one point, another judge, Arthur Gajarsa, said his wife often squeezes together the sides of their child's peanut butter and jelly sandwiches to keep the filling form oozing out.

    "I'm afraid she might be infringing on your patent!"

    A statement handed out by company representatives at yesterday's hearing says, "It wouldn't be fair to let another company simply copy the product and benefit from the hard work our people have invested."


I was expecting not to revisit this matter until summer but I guess it wasn't as sticky a case as the lawyers in the case thought, because the judges, instead of taking "several months" to come to a decision, cut right through the matter and delivered their verdict last Friday, less than 48 hours after closing arguments.

And the verdict is... no expanded patent.

Smucker's did not find the result toothsome, to be sure.

Here's last Friday's Wall Street Journal story.

    J.M. Smucker PB&J May Be Good, But Gets No Patent

    There's only so far you can go in trying to patent the ever-popular peanut butter and jelly sandwich.

    On Friday, the U.S. Court of Appeals for the Federal Circuit rejected an effort by J.M. Smucker Co. to patent its process for making pocket-size peanut butter and jelly pastries called "Uncrustables."

    Smucker 's peanut butter and jelly pockets are enclosed without a crust using a crimping method that the Orrville, Ohio, company says is one of a kind and should be protected from duplication by federal law.

    Patent examiners at the U.S. Patent and Trademark Office disagreed, saying the crimped edges are similar to making ravioli or a pie crust.

    Smucker already owns a general patent, which it purchased from Len Kretchman and David Geske, two Fargo, N.D., men who came up with the idea in 1995 and had been baking the products for school children.

    The two cases before the appeals court involved two additional patents that Smucker was seeking to expand its original patent by protecting its method.

    The company had appealed the initial rejection to the patent office's Board of Trademark Appeals and Interferences, but that body upheld the decision to reject the patents.

    Smucker then took the case to the appeals court, which entered a judgment Friday, without comment, affirming the patent office's decision.

    Brigid Quinn, a spokeswoman for the patent office, said the Smucker case is one of several that seek to test the limits of what federal law has determined can be protected by patents.

    "There's always more than one view on how it can be interpreted," Quinn said.

    "They're intellectual judgments that are crossed with scientific knowledge, and it's not black and it's not white. They're judgment calls."

    A spokeswoman from Smucker couldn't immediately be reached for comment Friday.

    In a statement released earlier, the company said it had purchased "a unique idea for making an everyday item more convenient" and made a significant investment in a "unique manufacturing process" for making the product.

I'm sure Smucker's lawyers will urge the company to take its case to the U.S. Supreme Court.

If I were Smucker's I'd do it, but not primarily in hope of winning; rather, the publicity for Uncrustables generated by the case will be worth untold millions in free advertising.

April 12, 2005 at 12:01 PM | Permalink


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