Appeal No. 2003-1775
Application No. 09/845,925 Page 8
The portion of the second Levine declaration referred to by
appellants is directed to tests performed with a device (Second
Levine declaration, Exhibit I), which is alleged to be like the
CUT-N-Seal device sold by Pampered Chef. That latter device is
alleged to correspond to the Tartmaster of Kaiser. According to
Dr. Levine (numbered paragraph 6 of the second declaration), the
CUT-N-Seal-like device was employed by placing two slices of
bread under the unit and pressing down on a top plunger of the
device. Dr. Levine (second declaration, numbered paragraph 6)
reports that:
[e]ven with a high degree of pressure, the bread slices
were not completely cut. However, the edge seal under
the sealing ring was completely compressed so the bread
was molded together in a homogenous mass, as shown in
Exhibit K . . . .
In numbered paragraphs 7 through 10 of that second
declaration, Dr. Levine further describes the resulting product
of the experiment as including an “amorphous homogenous mass” of
bread. Dr. Levine concludes that the sealed sandwich depicted in
U.S. patent No. 6,004,5964 was not duplicated by the sandwich he
4 The present application was filed as a continuation of
application No. 09/404,701, now abandoned, which latter
application was filed as a continuing (divisional) application of
prior application No. 08/986,581. Grandparent application No.
08/986,581 was issued as U.S. Patent No. 6,004,596. That patent
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