Patent #6,004,596

[SirBruce]

Smuckers in legal jam over PB&J patent
It's an American staple, and it can be made about as many ways as there are lunch boxes.

The classic is on white bread, but it can be made on wheat or rye, toasted, with crust or without, with bananas, peanut butter on just one slice, jelly on the other, or, most important, jelly in the middle and peanut butter on both slices.

It turns out that's the way J.M. Smucker makes them, sold as a product called "Uncrustables." The company says it's worth U.S. government protection because of the way it keeps its famous jelly from leaking out.

How do they do it? They surround the jelly completely with peanut butter, then put that on two pieces of bread, cut off the crusts and crimp the edges together.

Smuckers actually has a patent on the peanut butter shield, to stop the jelly from soaking into the bread, unlike a sandwich with peanut butter on just one side, which gets soggy when the jelly gets through.

And taking the crust off turns out to be very big with a certain demographic.

"I like it because it has no crust, and sometimes you can microwave it," says one girl at Richardson D. White Elementary School in Los Angeles.

But Smuckers is in court Wednesday because the government doesn't think the company really has built a better jam trap, and doesn't think the patent should be extended.

Putting the jelly inside the peanut butter, the U.S. Trademark Office now says, would have been obvious for one of ordinary skill.

Some legal scholars says it's not exactly an atomic secret.

"Is it obvious to cut the crust off a peanut butter and jelly sandwich?" asks Christine Haight Farley, a professor at American University in Washington, D.C. "

That's the plain way of stating the legal problem."

But Smuckers say it has invested in the idea and the technology. Marketing experts say the company has a point.

"It's a big business for them," says marketing expert Adam Hanft with Hanft Unlimited, Inc. "It's unique and they're entitled to own it. It's their right."

And so it's on to the food court, with the fate of the patented PB&J is in the hands of federal judges.

Here's the patent

United States Patent  6,004,596 
Kretchman ,   et al.  December 21, 1999 

--------------------------------------------------------------------------------
Sealed crustless sandwich


Abstract
A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings therebetween. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.


--------------------------------------------------------------------------------
Inventors:  Kretchman; Len C. (Fergus Falls, MN); Geske; David (Fargo, ND) 
Assignee:  Menusaver, Inc. (Orrville, OH) 
Appl. No.:  986581
Filed:  December 8, 1997

Bruce

[MaceVanHoffen]

Why is it the Trademark Office will interdict a patent like this, but ridiculous software patents like Amazon's one-click buy go through without a hiccup?

[schild]

Because the patent office still keeps it's records on paper for internal use. Things with a computer, well put simply, scare the fuck out of them. I could patent the 4 button mouse and people would have to pay me to make them. I really should do that. Just patent one more button than whatever is on the most advanced mouse out right now. That last button will be to turn the Immersion tech motor on and off in the mouse for the vibration.

I'm rambling.

Time to stop.

[Flashman]

Because the patent office still keeps it's records on paper for internal use. Things with a computer, well put simply, scare the fuck out of them. I could patent the 4 button mouse and people would have to pay me to make them. I really should do that. Just patent one more button than whatever is on the most advanced mouse out right now. That last button will be to turn the Immersion tech motor on and off in the mouse for the vibration.

I'm rambling.

Time to stop.

Well, I've worked at the USPTO since 2000, so let me tell you about it.

First of all, the office is paperless. Trademarks is 100% paperless, Patents less so but moving towards it. Paper is kept as a backup somewhere but I haven't seen a paper file in 2 years. All incoming paper is scanned. In my day to day work, I don't touch a piece of paper. Files, searches, evidence are all on-line. 

Things with a computer don't "scare the fuck" out of anyone here.

The average examiner here is computer literate, you have to be since your day to day job requires it. The people who examine patents have a minimum B.S. in the sciences. Many have an M.S. or Phd. 

Let me tell you why things like this get through. We're overworked. We have a production quota that must be met and its not possible to do the job 100% error free with the time constraints we're under. Why don't they hire more examiners? The USPTO is a cash cow. Is there any other agency that is not only self-funding but makes a huge profit?  Excess funds generated by it are siphoned off all the time instead of being put back into making the USPTO better.

Want to know why stupid business method patents get through? Blame this case  - Street Bank & Trust Co. v. Signal Financial Group, Inc. 149 F.3d 1368 (Fed. Cir. 1998).

[Paelos]

It's a fun day when you can catch Schild literally talking out of his ass. Thanks for the update Flashman.

[Abagadro]

I was recently involved in a case where the guy claimed a patent on internet commerce. Yes, he had a patent on the idea that one computer could talk to another computer to swap imformation regarding credit cards so that the merchant computer did not process the credit information. That was the patent.  And one judge half-way bought it and this has been causing headaches for multiple mega-corporations ever since.  So the problem isn't limited ot the patent office (which I know is overburdened), it's moronic judges too who don't understand concepts like obviousness.

[Nazrat]

It's those damned Markman hearings that complicate the issue.  Even a good federal judge is usually stymied by a well argued Markman hearing.  It is just so hard to differentiate between the patents based upon the volume of evidence from a Markman hearing. 

I had to handle a malpractice suit involving a series of patent disputes.  We hired a patent litigator to break down their performance.  He found that their performance was atrocious but we only used one or two points from that portion of the litigation because it would have taken us two days to explain to a jury what was supposed to happen and what they did wrong. 

We had a solid case on the malpractice during the hearings but we focused on overbilling as the jury could actually understand the issue in a few minutes instead of days.

Patent litigation is a very expensive proposition since it requires differentiation of rival documents that may differ only in one single measurement of the product or idea.  Painfully dull and tedious process.

[WayAbvPar]

It's a fun day when you can catch Schild literally talking out of his ass. Thanks for the update Flashman.

That only happens on days that end in 'y' 

[schild]

Of course I was talking out of my ass. In fact, I made every bit of that up and am honestly surprised anyone took that seriously.

[Shockeye]

Of course I was talking out of my ass. In fact, I made every bit of that up and am honestly surprised anyone took that seriously.

This one time at band camp, I was talking out of my ass and then I took my flute...