Appeal No. 2003-1775
Application No. 09/845,925 Page 14
Langsdorff Licensing Ltd., 851 F.2d 1387, 7 USPQ2d 1222 (Fed.
Cir., 1988).
Here, appellants (brief, page 15 and reply brief) have not
established a nexus between the invention of claim 39 and the
evidence of commercial success (Oakland declarations, Purcell
declaration). The commercial success evidence is directed to the
sales of prepackaged (presumably frozen) crustless peanut butter
and jelly sandwiches of a particular type. Appealed claim 39 is
not limited to a peanut butter and jelly sandwich, let alone such
sandwiches for which the sales data are provided.
Under the circumstances recounted above, it is our
determination that the evidence of record for and against a
conclusion of obviousness, reconsidered in light of the
respective arguments and evidence advanced by appellants and the
examiner, on balance, weighs most heavily in favor of an
obviousness conclusion with respect to the rejection under
consideration. Accordingly, we shall sustain the examiner's
§ 103(a) rejection of claim 39.
Rejection of Claims 40 and 41
Concerning this grouping of claims, we refer to our findings
above concerning the teachings of Kaiser with regard to the outer
bread portions of the crustless bread sandwich and the sealing
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