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IPBiz checked out the peanut-butter-and-jelly sandwich patent, US 6,004,596. Not sure we see referral for PAIR information on this page.
In any event, there has been re-exam activity on US 6,004,596. The BPAI reversed the re-examiner in appeal number 2006-1664 filed September 14, 2006! In a sequence of events only a patent attorney could fully appreciate, even though the examiner who found invalidity was reversed, the peanut butter and jelly patent died anyway. All those professors, including Adam Jaffe, should not be using the '596 as a whipping boy any longer.
On page 2 of the BPAI decision of September 14, "This invention relates to a sealed crustless peanut butter and jelly sandwich." Yes, this is the "right" patent.
On page 4, the references are identified as Sollerud, US 3,782,270 and Meli, US 5,112,632, and two technical publications. The rejections were for obviousness.
Here's the rub. The BPAI did not sustain the standing rejection under 103 of claims 41-51 BECAUSE the scope of the claims is unclear. The BPAI cited In re Steele, 305 F.2d 859 (CCPA 1962). Thus, the BPAI didn't rule on the art because the scope of the claims was indefinite. Likewise, the BPAI would not sustain a rejection under 35 USC 112 P1, also because the claims were indefinite.
The BPAI entered new rejections pursuant to 37 CFR 41.50(b) under 35 USC 112 P2, for indefiniteness. The BPAI cited In re Johnson, 558 F.2d 1008, 1015 (CCPA 1977). Claims 41-50 were also rejected under 35 USC 112 P1 for lack of written description. The BPAI cited In re Kaslow, 707 F.2d 1366.
Page 13 includes mention of a scanning problem at the USPTO.
Page 14 of the decision notes that the appellant must either reopen prosecution or request rehearing within 2 months.
In an action filed December 8, 2006, the PTO noted that the appellant had not filed a response within the two month window. Claims 41-51 have been canceled. The action was signed by primary examiner Kiley Stoner on December 5, 2006.
[Look here for USPTO entries on the re-exam.]
There are previous posts on IPBiz of relevance:
Smucker's US 6,004,596 is under re-examination
Return of the peanut butter and jelly sandwich patent? , which included text:
We have mentioned the so-called "peanut butter and jelly" patent both in this blog (Nov. 2004) and in IPT (e.g., "It's bound to scare you boy," IPT (March 2003)).