Food items and especially recipes are notoriously difficult to patent. Generally speaking, recipes do not fulfill the “non-obvious” requirement. Rarely does a recipe come along that is so unusual and so unique that its combination of ingredients qualifies it as non-obvious. Even some of the most interesting recipes can still be broken down into obvious steps and combinations.
That is why the J.M. Smucker Company thought they had struck gold when they were awarded a patent for their “sealed crustless sandwich,” which are now sold under the brand name, “Uncrustables.”
The patent was first awarded in 1998, and it allowed them to claim their rights to almost all crimped and sealed pocket sandwiches. The most popular Uncrustable was the peanut butter and jelly variety, but they created other varieties as well. Because they created other varieties, their intellectual property claims stretched into other areas. For example, they filed a cease and desist order against a Michigan grocery store company, claiming that their pocket “pasties” were a violation of the Smuckers patent. The grocery chain fired back and presented evidence that the “pasty” had been a staple in Michigan cuisine since the early nineteenth century.
This dispute brought the original patent into question. Was their idea actually novel? Was it actually non-obvious? Upon a more scrutinizing review, the US Patent Office believed that the Uncrustable was based on prior art (like the pasties in Michigan) and therefore were not unique enough to be deserving of a patent. In response, the Smuckers Company attempted to both patent the process by which the sandwiches are made, and to narrow the language of the patent to only cover peanut butter and jelly sandwiches that are made by encasing the jelly filling entirely in peanut butter inside the two crust pieces. Both of these applications were rejected.
The patent was officially rescinded in 2008, although Smuckers still sells Uncrustables today. They are the same product as they always were, minus the patent.
This story is a cautionary tale for anyone interested in creating a food product that they intend to patent. The road is difficult, and the product could be called into review at any time. Many could argue that the Uncrustable has been just as successful without its patent, but the Smuckers Company is definitely disappointed that they no longer have exclusive rights to the idea. Be sure to seek advice and to have a complete understanding of the law when applying for any kind of recipe patent. It can be done, but there is a whole extra layer of challenge involved!