The U.S. Court of Appeals for the Federal Circuit affirmed, without opinion, an obviousness rejection by the U.S. Patent and Trademark Office of claims to a crustless peanut butter and jelly sandwich in which outer layers of peanut butter encapsulated the jelly and the edges of the bread were compressed to prevent leakage. In re Kretchman, Case No. 04-1448/49 (Fed. Cir. Apr. 8, 2005) (affirmed without opinion, F.C.R. 36).
J.M. Smucker Co., on behalf of Messers. Kretchman and Geske, applied for a patent relating to Smucker’s crustless peanut butter and jelly sandwich product. In claiming this simple food product, one exemplary claim read in part: "closely spaced depressions of compacted bread along said sealed marginal area to crimp said compressed marginal area at spaced points to prevent said bread portions from separating at said outer perimeters...." Another read: "a second layer of peanut butter over said first layer of peanut butter and sealed to said first peanut butter layer at said exposed surface whereby said jelly is encapsulated by peanut butter of said layers...."
The Board of Patent Appeals (the Board) found the claims directed to the compressed edges of the sandwich to be anticipated citing a cooking reference entitled Tart Recipes From Around the World. The Board also found the claims directed to encapsulating jelly between layers of bread to be obvious based on an article entitled "Ways to Make it Through the First Day of School" in combination with the recipe book.
Smuckers reportedly generated sales of $27.5 million in 2004 on the product embodying the invention and attempted to predicate patentability on commercial success. However, according to the Board, no nexus had been established between the commercial success and any unique characteristics of the claimed subject matter. Therefore, the Board held that Smucker’s could not claim commercial success as a secondary indicia of non-obviousness. Smuckers appealed.
While hearing the appeal, Circuit Judge Gajarsa reportedly noted that his wife had squeezed together the sides of their child’s peanut butter and jelly sandwiches to keep the filling from oozing out and that such an act might infringe the subject claim if a patent issued. Such comments did not bode well for Smucker’s. The Federal Circuit affirmed the Board of Patent Appeals’ findings of anticipation and obviousness without opinion two days after the hearing.
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