You can only use “patent pending” if you actually have a patent application actually pending. If you have no patent application pending it would be a violation of fair trade practice laws to use “patent pending.”

-Gene

Paulanne – I mention recipes for pigment in my draft article, making the point that it’s unclear why a pigment recipe should be patentable, but not an edible recipe.

In an earlier version of the article I did mention in one paragraph the difficulty of enforcing a recipe patent, but as the article developed it started to get long. I also felt that the trouble of enforcing in this area is not peculiar to recipes and is shared with all methods. I anticipate writing an article about this issue more broadly in the coming weeks.

Thanks.

-Gene

With all due respect, this article is not intended to address what may be novel or what may be nonobvious. There was certainly something that could have been protected had the patent and claims been drafted properly in order to take into account prior art that they should have known about. Furthermore, the Wikipedia entry you cite also states that the Board of Patent Appeals and Interferences overturned the patent examiner’s rejections over the prior art in the reexamination proceeding, thus Smuckers did identify patent eligible material in the case, despite what you suggest. If Wikipedia is to be trusted (I haven’t found the BPAI decision) the Board issued other grounds of rejection regarding vagueness, but Smuckers never responded. A vagueness rejection is rather easy to overcome. All you have to do is be more clear. Smuckers obviously didn’t want to continue spending money to obtain the patent, otherwise they surely could have.

So this is really a story about needing to carefully consider the prior art and draft a patent application with the prior art in mind. It also is a cautionary tale about how narrow you will likely have to make your claims in order to obtain a patent on a recipe or food item. Finally, it is a cautionary tale about what happens when you give up and cease participating in an application even after a patentable invention has been identified. Here a patentable invention was identified but the claims were not believed to be definite. Fixing that problem would have been rather easy.

-Gene

With all due respect, your example of the crustless peanut butter and jelly sandwich is an example of what CAN NOT be patented.

From Wikipedia:
Sealed crustless sandwichIn December 1999, two independent inventors, Len Kretchman and David Geske, were granted U.S. patent,[3] “Sealed Crustless Sandwich” for a peanut butter sandwich that would have a long shelf life. The J.M. Smucker Co. bought the patent from the inventors and developed a commercial product based on the patent called Uncrustables. Smuckers then invested US$17 million in a new factory[4] to produce the product. By 2005, sales of Uncrustables had grown to $60 million a year with a 20% per year growth rate.

Smuckers attempted to enforce their patent rights by sending out cease and desist letters to competitors, and by expanding their intellectual property coverage via the patenting of a machine to produce Uncrustables sandwiches in high volume U.S. Patent 6,874,409 “Method and apparatus for making commercial crustless sandwiches and the crustless sandwich made thereby”. The U.S. Court of Appeals for the Federal Circuit, however, rejected the viability of the patent citing its similarity to existing processes such as that of fashioning ravioli or a pie crust.[5]

Regards,

Tom S.

When you get done with the article I’d love to publish an executive summary here with link back to your longer work. That sounds like a fun, fascinating project.

-Gene