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Business Impact

PB&J Patent Punch-up

Someone’s managed to patent a crustless PB&J, and it ain’t Mom.

Forget the hubbub over Napster, or even that inane “one-click” lawsuit between Amazon.com and Barnes & Noble. We need to talk about the IP food fight over U.S. Patent 6,004,596.

Hold on to your lunchboxes, Technology Review readers. This legal squabble pits J. M. Smucker, beloved maker of jam, against tiny, Gaylord, MI-based Albie’s Foods. For reasons that elude me, Smucker’s lawyers decided to try to enforce the firm’s exclusive rights to-I’m not making this up-its patented version of a peanut butter and jelly sandwich.

Owning the PB&J sandwich? Talk about an affront to mom and apple pie!

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Now, it’s the reasoning of the Smucker legal eagles that I really want to address. But I know you levelheaded Technology Review readers will find the notion of a patented PB&J pretty, well, hard to swallow. So before we go further, I invite you to look it up for yourself. (Go to www.uspto.gov/patft and enter the aforementioned patent number.) Then you too can marvel at this U.S. patent, granted in December 1999. You can experience firsthand its claim to a “first bread layer having a first perimeter surface coplanar to a contact surface” and its careful legalistic delineation “wherein said first filling” is “comprised of peanut butter” and a “second filling is comprised of a jelly.”

To uphold my commitment to journalistic accuracy, I must acknowledge that Smucker (through its Ohio subsidiary Menusaver) has not patented any old PB&J, but a breathtakingly novel version called a “sealed crustless sandwich.” Smucker markets the peanut butter and jelly sandwiches as “Uncrustables,” proclaiming them to be “the perfect grab-and-go’ sandwich for families on the move.”

Furthermore, I must note that I have not yet had the opportunity to personally sample an “Uncrustable.” Still, at the risk of spurring further lawsuits, I cannot help but notice from the picture on the box that they look suspiciously similar to plump, untoasted Kellogg’s Pop-Tarts! But I digress.

It is the legal reasoning that interests me, and it begins with Smucker’s justification for its claim of exclusivity. As Smucker’s lawyers explain in the patent, “There is currently no method or device for baking bread without having an outer crust. Hence there is a need”-people, there is a need!- “for a convenient sandwich which does not have an outer crust and which is not prone to waste of the edible outer crust portions.”

The truth is, leaving aside, if you can, the colossal idiocy of this patent, we are confronted with the monumentally misguided judgment of the Smucker lawyers in actually trying to enforce it when Albie’s started making their own crustless peanut butter and jelly sandwich-the E.Z. Jammer. And-all kidding aside-the Smucker debacle epitomizes the biggest problem with intellectual property as it is practiced today: it’s so often dramatically overreaching.

Overreaching copyright claims, overreaching patents, overreaching trademarks, overreaching litigation, and overzealous lawyers who ought to be ashamed. In equestrian circles, they say a horse overreaches when its hind legs extend so far forward they kick the forelegs. It’s a fitting image. In today’s wild world of intellectual property we find pervasive evidence of overreaching legal teams kicking the firms they supposedly represent. Do the Smucker folks really think they can win anything worthwhile by achieving crustless PB&J supremacy over a small rival? Could it possibly be worth the bad press and ever-rising legal fees as the case wends through the courts?

In homage to the Earl of Sandwich, who I’m sure is turning in his grave, I’ve singled out the Smucker case. But everybody I talk to seems to have their favorite examples-and I welcome further nominations. To start things rolling, though, here are a few others worth an honorable mention:
  • The legal acumen of British Telecom in dusting off a dubious 1989 patent (one of those “Rembrandts in the attic”) and starting to sue others claiming it has exclusive rights to the hyperlink that makes the Web possible. (And you thought Al Gore invented the Internet!)
  • Ralph Lauren’s victory in appeals court last year, when his lawyers forced a magazine begun in 1975 as the official publication of the U.S. Polo Association to change its name. What gall: they had called it Polo. Didn’t they know that is a line of clothing and accessories?
  • Mattel’s efforts to uphold the good and profitable Barbie name. In only the most recent in a long list of similar actions, Mattel dragged Utah artist Tom Forsythe to court for trying to exhibit a photo series called “Food Chain Barbie” that depicted the doll in various culinary poses, including wrapped in a tortilla, smothered with enchilada sauce.

This last case is an especially rich example of IP overreach. I mean, I don’t know if it’s art, but haven’t Mattel’s lawyers heard of the First Amendment? I’m just glad Forsythe didn’t seal Barbie in a crustless PB&J, or he’d probably have J. M. Smucker’s lawyers after him too.

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