Can a Sandwich Be Intellectual Property?

Well, can it?

Sandwiches, which in their modern form are named after John Montagu, 4th Earl of Sandwich, have been around in one form or another for a long time. They are, after all, just bread and fillings arranged in an easy-to-eat way. In fact, the sandwich is such an open category of food that hot dogs, wraps and pizza have all been argued to be sandwiches. Whether they are or not is a matter of personal judgment, but there have been attempts to formalize sandwich definitions before–specifically, when J.M. Smucker Co. attempted to patent a peanut butter and jelly sandwich.

Patent Number 6,004,596, “Sealed crustless sandwich,” was first issued on December 21, 1999. Since that time, it’s gained some infamy in the world of patent law. The central question: Can you really patent something that’s been made for generations?

A few months after gaining the patent, wrote Anne M. Shin for Gastronomica in 2002, Smuckers started producing Uncrustables–frozen, sealed peanut butter and jelly sandwiches with no crust. “The frozen sandwich can be placed in a lunchbox in the morning so that by lunchtime, the thawed sandwich is ready to eat,” Shin writes. Not long after that, another, much smaller company began producing a similar product, an Smuckers sent them a cease and desist letter. Challenger Albie’s Foods responded by filing a lawsuit that stated the patent wasn’t valid.

Media at the time mocked Smuckers for its silly-seeming patent, but Shin questioned whether the patent is really as absurd as people made out. “Patents are both technical and legal documents, and their interpretation is subject to many laws and legal decisions that challenge even experienced patoent attorneys,” she wrote.

There were a lot of questions involved in deciding whether or not Smuckers could patent its sandwich. (Technically, the original inventors of the crustless sandwich were another, smaller company that Smuckers quickly bought.) Among the most important, she writes, Smuckers claimed that the Uncrustables sandwich was different from a normal crustless PB&J, beloved by picky kids everywhere, because the crimping process the company used to seal the bread edges was new. That seal gave the Uncrustable a competitive advantage over other sandwiches, including other sealed-edge sandwiches that used starch for sealing, the company argued.

Things dragged along for a while–from 2001 to 2005, when a federal appeals court decided that 6,004,596 “was not novel or non-obvious enough to merit the award of a patent,” writes Alex Swerdloff for Munchies. The sandwich wars continue, however–in a recent volley, a Los Angeles food “disruptor” had tried to disrupt the Uncrustables model with gourmet sandwiches made along the same lines. Smuckers continues to make Uncrustables sans patent. Its website currently lists peanut butter and grape jelly, strawberry jam, honey and several reduced-sugar “spreads” as options, along with “chocolate flavored hazelnut spread.” One might call that Nutella, but that, of course, is trademarked. 

Kat Eschner | | READ MORE

Kat Eschner is a freelance science and culture journalist based in Toronto.