Sealed crustless sandwich
Encyclopedia
A sealed crustless sandwich is a type of sandwich
which has a filling sealed between two layers of bread. The two layers of bread are crimped together to seal in the filling and the crust is removed. A popular variety is peanut butter and jelly
.
Sealed crustless sandwiches are mass produced by The J. M. Smucker Company under the brand name
"Uncrustables".
A number of patents have issued for various versions of sealed crustless sandwiches. These include , , and . The '596 patent has been especially controversial since it appears to the general public as if an obvious and well known invention has been patented. On Sept. 25, 2007, the United States Patent and Trademark Office
concluded its reexamination of the '596 patent and issued a certificate cancelling all claims.
The first claim
of Menusaver's patent reads:
That is, the patent described a sandwich with a layer of filling in between two pieces of bread which are crimp
ed shut and have their crust removed. The other nine claims of the patent elaborate the idea further, including the coating of two sides of the bread with peanut butter first before putting the jelly in the middle, so that the jelly would not seep into the bread—the layers of filling "are engaged to one another to form a reservoir for retaining the second filling in between".
Many intellectual property
experts and members of the general public view this patent as an example of the patent office's inability to properly examine patent applications. The patent examiner cited only seven previous patents issued between 1963 and 1998, and a 1994 book called 50 Great Sandwiches that were deemed relevant to the novelty and nonobviousness of the invention. He concluded that the invention was indeed novel and not obvious and allowed the claims.
Since then, many more earlier patents and publications have been found which teach some or all of the different aspects of the invention. These include a 1949 patent that describes a device to create these types of sandwiches: "An object of this invention is to provide... a means for locating said filling in the center of the sandwich and sealing the marginal edges of the pieces by heat and pressure to preclude the escape of filling from the finished product... [and] a means for trimming the baked dough
pieces". These new pieces of prior art have been brought to the attention of the patent office through a reexamination
proceeding. (See below)
Smucker's also attempted to patent the process of making the sandwich in 2004 (rather than just the sandwich itself) and on April 8, 2005 had its application rejected by the U.S. Court of Appeals for the Federal Circuit
(CAFC).http://biz.yahoo.com/ap/050408/pb_j_patent.html?.v=1.
, Albie's Food, Inc., was sent a cease and desist
letter from Smucker's, accusing Albie's of violating their intellectual property rights to the "sealed crustless sandwich". Instead of capitulating, Albie's took the case to federal court, noting in their filings a pocket sandwich with crimped edges and no crust was called a "pasty
" and had been a popular dish in northern Michigan since the nineteenth century. The parties eventually reached a private settlement.
with the USPTO asking that the patent be reexamined in light of the new prior art
. The reexamination serial number is 90/005,949.
In response to the new prior art cited, Smucker's narrowed the wording of their claims to only cover a very specific version of their sealed crustless sandwich. The more narrow claims, for example, only cover sealed crustless peanut butter and jelly sandwiches where the jelly is held between two layers of peanut butter. Nonetheless, in December 2003, the patent examiner rejected the narrowed claims in light of the new prior art.
Smucker's appealed the rejection to the Board of Patent Appeals and Interferences
(BPAI). In September 2006, The BPAI reversed the examiner's reasons for rejecting the claims, but found new reasons for rejecting them. They found that the wording in the narrowed claims was too vague to clearly identify exactly what Smucker's is trying to patent. Because Smucker's failed to respond to the BPAI's rejections within the two month deadline, the PTO mailed a Notice of Intent to Issue a Reexamination Certificate (NIIRC) in December 2006 cancelling all claims. The reexamination certificate was issued on Sept. 25, 2007.
. They have built a plant in Scottsville, Kentucky
, to produce the product. Annual sales are around $US 60 million.http://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=SJM&script=410&layout=-6&item_id=721117
Sandwich
A sandwich is a food item, typically consisting of two or more slices of :bread with one or more fillings between them, or one slice of bread with a topping or toppings, commonly called an open sandwich. Sandwiches are a widely popular type of lunch food, typically taken to work or school, or...
which has a filling sealed between two layers of bread. The two layers of bread are crimped together to seal in the filling and the crust is removed. A popular variety is peanut butter and jelly
Peanut butter and jelly sandwich
The peanut butter and jelly sandwich or PB&J is a sandwich, popular in North America, that includes a layer of peanut butter and either jam or jelly on bread, commonly between two slices, but sometimes eaten open-faced....
.
Sealed crustless sandwiches are mass produced by The J. M. Smucker Company under the brand name
Brand
The American Marketing Association defines a brand as a "Name, term, design, symbol, or any other feature that identifies one seller's good or service as distinct from those of other sellers."...
"Uncrustables".
A number of patents have issued for various versions of sealed crustless sandwiches. These include , , and . The '596 patent has been especially controversial since it appears to the general public as if an obvious and well known invention has been patented. On Sept. 25, 2007, the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
concluded its reexamination of the '596 patent and issued a certificate cancelling all claims.
Controversial patent
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
of Menusaver's patent reads:
- A sealed crustless sandwich, comprising:
- a first breadBreadBread is a staple food prepared by cooking a dough of flour and water and often additional ingredients. Doughs are usually baked, but in some cuisines breads are steamed , fried , or baked on an unoiled frying pan . It may be leavened or unleavened...
layer having a first perimeterPerimeterA perimeter is a path that surrounds an area. The word comes from the Greek peri and meter . The term may be used either for the path or its length - it can be thought of as the length of the outline of a shape. The perimeter of a circular area is called circumference.- Practical uses :Calculating...
surface coplanar to a contact surface; - at least one filling of an edible food juxtaposed to said contact surface;
- a second bread layer juxtaposed to said at least one filling opposite of said first bread layer, wherein said second bread layer includes a second perimeter surface similar to said first perimeter surface;
- a crimpedCrimp (joining)Crimping is joining two pieces of metal or other malleable material by deforming one or both of them to hold the other. The bend or deformity is called the crimp.- Uses :...
edge directly between said first perimeter surface and said second perimeter surface for sealing said at least one filling between said first bread layer and said second bread layer;- wherein a crust portion of said first bread layer and said second bread layer has been removed.
- a first bread
Crimp (joining)
Crimping is joining two pieces of metal or other malleable material by deforming one or both of them to hold the other. The bend or deformity is called the crimp.- Uses :...
ed shut and have their crust removed. The other nine claims of the patent elaborate the idea further, including the coating of two sides of the bread with peanut butter first before putting the jelly in the middle, so that the jelly would not seep into the bread—the layers of filling "are engaged to one another to form a reservoir for retaining the second filling in between".
Many intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
experts and members of the general public view this patent as an example of the patent office's inability to properly examine patent applications. The patent examiner cited only seven previous patents issued between 1963 and 1998, and a 1994 book called 50 Great Sandwiches that were deemed relevant to the novelty and nonobviousness of the invention. He concluded that the invention was indeed novel and not obvious and allowed the claims.
Since then, many more earlier patents and publications have been found which teach some or all of the different aspects of the invention. These include a 1949 patent that describes a device to create these types of sandwiches: "An object of this invention is to provide... a means for locating said filling in the center of the sandwich and sealing the marginal edges of the pieces by heat and pressure to preclude the escape of filling from the finished product... [and] a means for trimming the baked dough
Dough
Dough is a paste made out of any cereals or leguminous crops by mixing flour with a small amount of water and/or other liquid. This process is a precursor to making a wide variety of foodstuffs, particularly breads and bread-based items , flatbreads, noodles, pastry, and similar items)...
pieces". These new pieces of prior art have been brought to the attention of the patent office through a reexamination
Reexamination
In United States patent law, a reexamination is a process whereby a third party or inventor can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable...
proceeding. (See below)
Smucker's also attempted to patent the process of making the sandwich in 2004 (rather than just the sandwich itself) and on April 8, 2005 had its application rejected by the U.S. Court of Appeals for the Federal Circuit
United States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
(CAFC).http://biz.yahoo.com/ap/050408/pb_j_patent.html?.v=1.
Patent enforcement
In 2001, a small grocery and caterer in Gaylord, MichiganGaylord, Michigan
Gaylord is a city in the U.S. state of Michigan. As of the 2000 census, the city population was 3,681. It is the county seat of Otsego County. The city is also the seat of the Roman Catholic Diocese of Gaylord; it is by far the smallest settlement serving as the location of an active Roman...
, Albie's Food, Inc., was sent a cease and desist
Cease and desist
A cease and desist is an order or request to halt an activity and not to take it up again later or else face legal action. The recipient of the cease-and-desist may be an individual or an organization....
letter from Smucker's, accusing Albie's of violating their intellectual property rights to the "sealed crustless sandwich". Instead of capitulating, Albie's took the case to federal court, noting in their filings a pocket sandwich with crimped edges and no crust was called a "pasty
Pasty
A pasty , sometimes known as a pastie or British pasty in the United States, is a filled pastry case, associated in particular with Cornwall in Great Britain. It is made by placing the uncooked filling on a flat pastry circle, and folding it to wrap the filling, crimping the edge at the side or top...
" and had been a popular dish in northern Michigan since the nineteenth century. The parties eventually reached a private settlement.
Patent reexamination
In March 2001, during the legal proceedings, Albie's filed a request for reexaminationReexamination
In United States patent law, a reexamination is a process whereby a third party or inventor can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable...
with the USPTO asking that the patent be reexamined in light of the new prior art
Prior art
Prior art , in most systems of patent law, constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality...
. The reexamination serial number is 90/005,949.
In response to the new prior art cited, Smucker's narrowed the wording of their claims to only cover a very specific version of their sealed crustless sandwich. The more narrow claims, for example, only cover sealed crustless peanut butter and jelly sandwiches where the jelly is held between two layers of peanut butter. Nonetheless, in December 2003, the patent examiner rejected the narrowed claims in light of the new prior art.
Smucker's appealed the rejection to the Board of Patent Appeals and Interferences
Board of Patent Appeals and Interferences
The Board of Patent Appeals and Interferences is an administrative law body of the United States Patent and Trademark Office , which decides issues of patentability. The Chief Administrative Patent Judge is James Donald Smith.-Structure:...
(BPAI). In September 2006, The BPAI reversed the examiner's reasons for rejecting the claims, but found new reasons for rejecting them. They found that the wording in the narrowed claims was too vague to clearly identify exactly what Smucker's is trying to patent. Because Smucker's failed to respond to the BPAI's rejections within the two month deadline, the PTO mailed a Notice of Intent to Issue a Reexamination Certificate (NIIRC) in December 2006 cancelling all claims. The reexamination certificate was issued on Sept. 25, 2007.
Commercial sales
As of 2009, Smucker's is selling the unpatented sandwiches under the "Uncrustables" trademarkTrademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
. They have built a plant in Scottsville, Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, to produce the product. Annual sales are around $US 60 million.http://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=SJM&script=410&layout=-6&item_id=721117