- The Washington Times - Friday, April 8, 2005

A federal court yesterday affirmed what the U.S. Patent and Trademark Office has been saying about Smucker’s method for making peanut butter and jelly sandwiches: There is nothing new about the way the company puts peanut butter and jelly together between slices of bread.

The decision by the U.S. Circuit Court of Appeals for the Federal District means anyone can use a similar method of making the sandwiches to compete for sales with J.M. Smucker Co.’s “Uncrustables.”

The company said in its patent application that the method of making the sandwiches was unique because it sealed the jelly between layers of peanut butter and crimped the edges of the bread together without a crust.

J.M. Smucker made $27.5 million from sales of the sandwiches last year.

“It wouldn’t be fair to let another company simply copy the product and benefit from the hard work our people have invested,” the company said before the ruling.

However, the U.S. Patent and Trademark Office said the method of making Uncrustables sandwiches was too “obvious,” and a patent examiner denied the application.

J.M. Smucker appealed.

A three-judge panel of the U.S. Circuit Court of Appeals in the District denied the patent, without comment.

“I think they felt the examiner’s decision that the invention was obvious was a good decision,” said Tom Krause, the lawyer who argued the case for the patent office.

The court usually takes months to rule on a case. The J.M. Smucker case was argued in court Wednesday and the ruling issued the next morning.

“I think the court found it to be a relatively easy case,” Mr. Krause said. “This is simply a good example of the patent system acting to prevent bad patents from issuing.”

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

A key piece of evidence presented by the patent office was a cookbook that describes a way to remove the crust from bread and crimp the edges together to seal the contents inside.

The cookbook indicated J.M. Smucker’s method of making sandwiches was nothing new, Mr. Krause said.

J.M. Smucker said it would continue to produce Uncrustables.

“While disappointed with today’s decision, we do not anticipate this decision will have any material impact on our short- or long-term financial performance,” the company said.

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. That patent is being re-examined by the patent office.

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