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Watch Your Mouth: Can You Patent a Sandwich? Can You Patent a Sandwich?
by Peter Smith
On a summer’s day in 1995, David Geske and Len Kretchman are hanging out on Geske’s Fargo, North Dakota patio. Geske is in the ice business. Kretchman works as a consultant. At some point, their wives, Kristen and Emily, head inside to make peanut butter and jelly sandwiches, and their kids file a standard childhood culinary request with their moms: No crusts, please. Later, the women relay the request to their husbands. “You guys should make a sandwich with no crust,” they tell them.
The two men run with the idea, and begin mass-producing pre-baked, crustless peanut butter and jelly sandwiches for schools. Kretchman and Geske crimp the ends of the sammy and wrap it all in freezer-ready foil so that by the time lunchtime rolls around, kids could eat a thawed sandwich. Later, Kretchman and Geske sell the idea to jelly giant J.M. Smucker Co., and in 1999, a Smucker’s subsidiary submits patent number 6,004,596 for a “Sealed Crustless Sandwich”—a round peanut butter and jelly sandwich with no crust, sealed in a foil wrapper.
Kretchman and Geske didn’t just lift this idea from their own kin—men, women and children everywhere have been snacking on crustless sandwiches long before Smucker’s claimed ownership over the idea. But, as Jonathan Lethem notes in an article for Harper's on “The Ecstasy of Influence,” patent requests like this reflect a wider cultural shift. Today, even the Girl Scouts must pay royalties for singing songs around the campfire. “We in Western society are going through a period of intensifying belief in private ownership,” Lethem writes, “to the detriment of the public good.”
The patent office has an entire category devoted to “Food or Edible Material: Processes, Compositions, and Products,” which covers a staggering number of enzymes, additives, processes, formulations, and reformulations that transform our food. Sandwich-related patents in particular reflect the range of American culinary ingenuity and absurdity. Inventors of the “Glove Use While Eating,” the “Cucumber Sandwich,” and the “Sandwich Grill” have all been issued patents.
In order to secure a patent, inventions are expected to meet standards for novelty, usefulness, and “non-obviousness.” That last bit is probably the biggest source for patent disputes. Patent No. 6,004,596’s usefulness was not in question. But a peanut butter and jelly sandwich is both mundane and obvious, even if you’ve cut off the crust, crimped the edges, and frozen it whole. Still, a patent examiner named Lien Tran approved the patent on the grounds that the invention was not just a sandwich: It was a sandwich within a sandwich. By surrounding the jelly filling on both sides with peanut butter so the bread didn’t get soggy, Tran determined, the inventors were on to something new.
By 2001, Smucker’s had turned the patent into product, billed it as “The perfect grab-and-go sandwich for families on the move,” and started selling the patented PB&Js like cold, individually-wrapped hotcakes. According to filings at the time, the sandwiches—dubbed Uncrustables, a not-so-subtle rip-off of Lunchables—accounted for $15 million in revenue in just a year and a half. The big jam company wanted to protect its investment, so it got aggressive against other outlets hoping to capitalize off the classic crustless PB&J. Its legal team filed three separate proceedings of patent infringement against Albie’s, a pasty maker in Gaylord, Michigan, for selling crustless peanut butter and jelly sandwiches they called E.Z. Jammers.
Albie’s fought back—and for good reason. In Michigan, pasties do not refer to appliques on strippers' nipples (pronounced pay-steez), but rather turnovers with pie-like crusts filled with stew (pás-teez). These little pouches of stew are on-the-go food from an earlier time, or as folklorist William Lockwood calls them, “‘functional food’ for working immigrants.” In this context, Albie’s argued that its crustless PB&J pasties spawned from a tradition that dated back a lot longer—and had been handled by a lot more palms—than Uncrustables.
Smucker’s continued to assert that its sandwich-making process was unique and worthy of protection, but as it turns out, the crimped edges of Uncrustables actually look a lot like ravioli. Upon re-examination, the patent office even noted that sandwiching jelly between two layers of peanut butter was not novel—it unearthed a citation in The Wichita Eagle from 1994, explaining the very method as a back-to-school tip for keeping sandwiches free from sogginess. A court ultimately rejected the patent in 2005.
The story of the patented PB&Js is a convenient parable for the vast overreach and rampant abuse of intellectual property in the United States. Even the recent America Invents Act, signed earlier this month by President Obama, won’t stop some of the more questionable patents. As Adam Jaffe and Josh Lerner write in Innovation and Its Discontents, it’s become all too common for patents to be granted without clear evidence of invention or obvious novelty, and the crustless sandwich is hardly the worst offender. Jaffe and Lerner cite patents issued for a “Bread Refreshing Method” and a “Method on Exercising a Cat.” If a patent once acted as a knife to fend off imitators in self-defense, Jaffe and Lerner write, then the crustless sandwich provided evidence that the patent office was indiscriminately distributing bazookas. Only in the rare case does a little pasty maker, making use of a healthy public domain, fight back and win.
For sandwich lovers everywhere, here’s one last reason why Smucker’s shouldn’t own the crustless sandwich: Uncrustables just don’t taste very good. In examining this case for Gastronomica, Anna M. Shih paired her food patent law investigation with some field tasting. Shih got halfway through an Uncrustables before tossing the rest in the trash and reaffirming her commitment to consuming sandwiches the old-fashioned way—with the crust cut off and the edges crimped by hand. After all, the sandwich belongs to all of us.
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