- The Washington Times - Thursday, April 7, 2005

Technology is taking aim at the peanut butter and jelly sandwich.

A federal court in the District is being asked to decide whether there is something so unique about Smucker’s peanut butter and jelly sandwiches that it should get a patent.

J.M. Smucker Co. says its method for making “Uncrustables” sandwiches is a new invention because the company wraps the jelly in layers of peanut butter and closes the edges by crimping them together. And there’s no crust.

The U.S. Patent and Trademark Office, which has denied J.M. Smucker’s attempts to expand its patent rights, says it would be tough to claim anything new about making a peanut butter and jelly sandwich, a staple of American life for generations.

The U.S. Circuit Court of Appeals heard arguments in the case Wednesday and is expected to issue a ruling this summer.

A key question in the case is “whether or not it was new and unobvious to put the jelly inside two layers of peanut butter,” said Vicki Margolis, chairman of intellectual property litigation for Venable LLP, a large D.C. law firm.

The company says putting the jelly between layers of peanut butter is unique because it prevents the jelly from soaking the bread.

Equally unique is the source of the dispute.

“I’ve personally never handled a peanut butter and jelly case, so yeah, it’s unusual,” said Ms. Margolis, who has litigated pharmaceutical and biotechnology patent cases for her firm. “I think we always have to keep our minds open to how simple solutions to age-old problems are worthy of a U.S. patent. I guess at this point, nothing would surprise me.”

However, some critics of the patent system are not amused the issue even became a legal case.

“This case reveals a frequent criticism of the U.S. patent system,” said Matthew M. Wolf, a patent attorney for the D.C. law firm Howrey LLP.

“Some feel as though it’s a structural problem that results in peanut butter and jelly patents, and I tend to agree. When I was a kid, my mother used to take a Mason jar and push it down over a PB and J to create something a lot like the patent.”

Of the approximately 350,000 patent applications filed each year, the Patent and Trademark Office grants about 65 percent of them.

J.M. Smucker purchased the 1999 patent on the “sealed crustless sandwich” from two men who produced them in Fargo, N.D., for Midwestern schools. The company then tried to expand its patent rights to include the method for making the sandwiches and their structure.

“We bought a unique idea for making an everyday item more convenient, made a significant investment in the idea and in developing our innovative manufacturing technology that makes Uncrustables so easy to use,” the Orrville, Ohio, company said.

Uncrustables produced $27.5 million in sales for J.M. Smucker last year, according to Information Resources Inc., a company that monitors supermarket sales.

J.M. Smucker appealed the denial of its patent claim to the courts.

The company’s attorneys said in a legal brief that the Uncrustables’ “smashed edge is the antithesis of the surface-to-surface seal” commonly found among tarts, ravioli and other foods. Instead, the slices of bread are “separately visible about the periphery of the sandwich.”

A new survey by pollsters Harris Interactive shows 59 percent of children eat a peanut butter and jelly sandwich at least once a month, and 29 percent eat one at least once a week.

Among adults, 53 percent eat a peanut butter and jelly sandwich at least once a month, and 26 percent eat one at least once a week, according to the survey, which was sponsored by J.M. Smucker.

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