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Patents and Peanut Butter Sammiches

Some things just require no comment. From Greg Aharonian's PatNews newsletter:

PEANUT BUTTER SANDWICHES AT THE FEDERAL CIRCUIT For those of you enjoying these weeks edition of "Making good patent policy based on questionable patents", on Wednesday the CAFC heard arguments for the Smucker's peanut butter patent. As an aside, to show how silly things are becoming, I was interviewed (my 15 seconds) on Wednesday's CBS Evening News about the case. IP Law Bulletin has some good court quotes:
Peanut Butter And Jelly Case Reaches Federal Circuit IP Law Bulletin (Thursday, April 07, 2005)-- [...] Smucker appealed the decision to the Federal Circuit, which heard oral arguments on Wednesday, shortly after lunch.
Key to the discussion at Wednesday's hearing was whether the sandwiches were "smushed" or "compressed".
Robert Vickers, an attorney with Fay, Sharpe, Fagan, Minnich & McKee who represents Smucker, told the judges that the sandwich's edge isn't made like the tarts or raviolis shown in a cookbook cited as prior art.
"So it's smushed!" Judge Raymond Clevenger III declared, according to a transcript in the Wall Street Journal.
"It is sealed by compression, but it is not smushed," Mr. Vickers explained, according to the newspaper. Vickers also said the sandwich is novel because the filling "encapsulates" jelly between two larger layers of peanut butter, the Wall Street Journal reported.
Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child's peanut butter and jelly sandwiches to keep the filling from oozing out. "I'm afraid she might be infringing on your patent!" he said.
The frozen, disc-shaped sandwiches, marketed as lunch-box fare, have been one of Smucker's most-successful products. They generated sales of $27.5 million in 2004, according to Information Resources Inc., a Chicago company that tracks sales in supermarkets, not including Wal-Mart stores.

Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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