Three federal judges yesterday questioned whether the method for creating a crustless, peanut butter and jelly sandwich is unique.

The hearing, at the U.S. Court of Appeals for the Federal Circuit, was the latest round in J.M. Smucker Co.'s attempt to expand its patent on Uncrustables, frozen, disk-shaped peanut butter and jelly sandwiches that have been among the Orrville, Ohio, jam-maker's most successful products.

The three judges explored the difference between bread that is "smushed" versus "compressed," and pondered the idea of jelly "encapsulated" in peanut butter. One even questioned whether his wife violated Smucker's patent when she made lunch for their child.


Yesterday, Smucker lawyer, Robert Vickers of Fay, Sharpe, Fagan, Minnich & McKee LLP of Cleveland, argued that the sandwich's edge isn't made like the tarts or raviolis shown in the cookbook. Instead, he said, the bread retains its original characteristics but its edges are compressed.

"So it's smushed!" Judge Raymond Clevenger III declared,

"It is sealed by compression, but it is not smushed," Mr. Vickers explained.


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