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The Nation | COLUMN ONE

Note: This Headline Is Patented

Not really -- but restroom instructions and a peanut butter and jelly sandwich were. The examples illustrate a bureaucracy in crisis.

February 07, 2003|David Streitfeld | Times Staff Writer

Smucker, the Orrville, Ohio, maker of jams and jellies, realized the sandwich could be a valuable addition to its product line. Smucker bought the company and shortened the name to Uncrustables.

The company also got the patent, which was granted Dec. 21, 1999, for a "sealed crustless sandwich."

"On what basis they granted it, I have no idea," said Geske, who made enough from the sale to Smucker to "take a couple of years off to enjoy the family."

The defendant in the sandwich lawsuit, Albie's, was founded in 1987 by two childhood buddies to sell pasties, which are meat or vegetables baked in dough. In the summer of 2000, the Gaylord, Mich.-based company began selling a peanut butter and jelly sandwich called E.Z. Jammers. It weighed 2.8 ounces, bigger than Smucker's 2-ounce product.

By December, Smucker noticed the E.Z. Jammers and demanded that Albie's stop. Albie's sued to have the patent declared invalid. Smucker then sued Albie's for infringement.

To avoid the expense of a full-blown suit, Albie's asked the patent office for a reexamination, a relatively rare procedure. The best way to get a patent thrown out is by finding examples of so-called prior art -- proof that the patent really didn't offer anything new.

One such piece of evidence suggested by Albie's was a kitchen tool called the Cut-N-Seal. This plunger-type device allowed an individual to seal and crimp a filling between two slices of bread.

To knock down the Cut-N-Seal, a Smucker lawyer filed an affidavit describing how he had tried to use it to make a sandwich that looked as sleek and tidy as an Uncrustable.

The Cut-N-Seal sandwiches, the lawyer said, all had "rupturing problems," particularly in the "upper bread layer." The accompanying photographs showed jelly bursting out all over.

"So what?" said Heinl, the Albie's lawyer. "Anyone can make a defective sandwich."

Although the arguments were narrow, the business implications were large.

"The Uncrustables brand sandwich defines its own market," Smucker said in an affidavit arguing that anything so immediately popular had to be non-obvious and therefore patentable. With sales of 50 million sandwiches a year, it was the firm's fastest-growing product.

The point of the lawsuit was to keep it that way, Heinl said, noting: "They were filing suit to keep Albie's out of the market."

Smucker, which recently solidified its hold on the peanut butter market by buying the Jif brand, is confident the reexamination will help Uncrustables.

"The claims will be narrowed," said attorney Robert Vickers, "but the patent will be a lot stronger."

Patent Office Challenges

Patent officials decline to talk about specific patents, although they note that the most controversial come under review or, like the IBM bathroom patent, are quietly dropped by their owners.

"We grant 170,000 patents a year," said Esther Kepplinger, deputy commissioner of patent operations. "To focus on five, and extrapolate that the overall quality is poor, is unfair."

Yet the agency's director, Rogan, acknowledges that the problems have run deeper.

"Some of the early business-method patents were fairly broad," he said. These led to conflicting claims and lawsuits. "We're much narrower now." And tougher: "We've gone from a 75% acceptance rate to a 75% rejection rate" on those patents. Of course, those early, broad patents are still out there, wreaking havoc.

Rogan hopes to hire 2,500 additional examiners, but his strategic plan to solve the patent crisis also includes outsourcing some of the basic patent search work, saving time and labor. He wants to encourage electronic applications, rescuing a patent office he says is "drowning in paper," and charge applicants higher fees for bigger applications, a move intended to reduce unnecessary patent claims.

Although no patent director has been so ambitious, smaller reforms have failed before. The patent office first promised a paperless office in 1983.

Outside critics believe the problems are more intractable.

In a recent speech, Judge Richard Posner of the U.S. 7th Circuit Court of Appeals in Chicago said a large part of the recent jump in applications "is defensive or strategic patenting."

"You get a patent because [otherwise] someone else will patent it," he said. "Or you get a patent because you would like to block a competitor."

The walls protecting this ever-expanding pool of intellectual property are getting stronger. One reason is the 1982 creation of the Court of Appeals for the Federal Circuit. It handles only patent cases -- and usually rules in favor of the patent holder.

"A specialized court tends to see itself, I think, as a booster of the specialty industry," Posner said.

Last year, the appeals court said the patent office had incorrectly rejected two applications for "obviousness." If an examiner rejects an application using "general knowledge," the court said, that knowledge "must be articulated and placed on the record."

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