Appeal No. 2003-1754
Application No. 09/821,137 Page 9
the sandwich of Kaiser. In light of the above and for reasons
set forth in the answer, the examiner has established a prima
facie case of obviousness on this record.4
Appellants maintain that the examiner has not met the legal
requirements for establishing the obviousness of the claimed
subject matter as set forth at pages 11-16 of the brief. More
specifically, at pages 27 and 28 of the brief and continuing in
the reply brief, appellants argue that the following three
features are not taught by the applied prior art: (1) “positive
cutting,” (2) “compressing the bread completely around the outer
periphery to seal the bread, independently of the cutting of the
bread portions (compressing the cut portions)” and (3) obtaining
a result of “separately exposed” cut portions. A fourth feature
“crimping the periphery at spaced areas of increased holding
action” that is attributed to claim 47 by appellants is also
argued as not being taught by the applied prior art.
Appellants assert that the Tartmaster cutting, sealing and
crimping tool employed by Kaiser would not positively cut through
two bread slices. Appellants rely on a second declaration of
4 We do not address the additional teachings of Shideler
with respect to the examiner’s rejection of claims 46, 47, 53 and
54 since Shideler is relied upon by the examiner for teaching
features that are not required by this grouping of claims.
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