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Originally published Saturday, April 9, 2005 at 12:00 AM

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Peanut-butter patent isn't going to stick

There's only so far you can go in trying to patent the ever-popular peanut butter and jelly sandwich. Yesterday, the U.S. Court of Appeals for...

The Associated Press

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

Yesterday, 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 2-ounce peanut butter and jelly pockets come in two flavors — strawberry and grape — and 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 schoolchildren.

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 Patent 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 yesterday, without comment, affirming the patent office's decision.

Meanwhile, the patent office is re-examining the company's original patent.

Smucker asked Albie's Foods of Gaylord, Mich., to stop producing ready-made PB&J sandwiches for a school district, but the food manufacturer went to a federal judge in 2001 and then the patent office to invalidate Smucker's original patent.

Albie's was "caught off guard, literally, because they didn't think you could patent a peanut butter and jelly sandwich," said the company's lawyer, Kevin Heinl.

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."

The patent office received 376,810 patent applications last year. It usually takes about 2 ½ years for a patent to be processed. About 65 percent of all patents submitted are approved, Quinn said.

"Very few patents are what one would call a 'pioneer patent,' meaning that the inventor discovered something very, very new that has never been discovered before," she said. "Most patents are given to changes to existing technology."

Smucker said in a statement released yesterday that it was disappointed with the decision but does not anticipate it will affect the company's short- or long-term financial performance.

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

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