Appeal No. 2003-1775
Application No. 09/845,925 Page 9
made with the CUT-N-Seal-like device. Moreover, a sandwich
having the brand name “Uncrustables” was obtained by Dr. Levine
and found by him to have an edge seal that differed from that of
his CUT-N-Seal-like device prepared sandwich. The other Levine
declaration referred to at page 6 of the brief is of little
probative value since that declaration is not specifically
directed to the present claim 39 product and the Kaiser
reference.
The tests conducted in the second Levine declaration were
conducted by pushing down on the top plunger of the device used
in the tests without pushing down on the outer ring of a
“Tartmaster.” As is readily apparent from an inspection of the
construction of the Tartmaster with a plunger (such as model
H2001 or H2003), there are only a few ways to use the device.
One of ordinary skill in the art would have recognized that
pressing on the outside edge would have been an option that
yields greater cutting force if the particular bread slices
selected are difficult to cut. In such a case, pushing the
is currently undergoing reexamination (Control No. 90005948).
Moreover, U.S. Patent No. 6,004,596 is involved in litigation
(brief, page 27). Application No. 10/314,770 was filed as a
continuation of application No. 09/821,137, which latter
application is another related application on appeal (appeal No.
03-1754).
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