compressed, not smushed

“So it’s smushed!” Judge Raymond Clevenger III declared, referencing the way Smuckers makes its crustless PBJ sandwiches.

The Wall Street Journal outlines the earth-shattering case in “Patent Case Turns Sticky for Smucker,” proving once again that justices are too often sense-impaired when deciding what cases to hear.

Today, Sara Schaefer Muñoz wrote:

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 ...

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 ... 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.”

It’s too much. I wonder how much this case will cost taxpayers?

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