Appeal No. 2003-1754
Application No. 09/821,137 Page 10
Leon Levine (attachment No. 5e) and a declaration of Malcolm
Cooke (attachment No. 6a) in an apparent attempt to discredit the
disclosure of Kaiser, particularly at item No. 2 of pages 30 and
31, wherein cutting and sealing multiple bread slices with the
device is explicitly described. We do not find appellants’
arguments and evidence persuasive.
The portion of the Levine declaration referred to by
appellants is directed to tests performed with a device (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
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