Appeal No. 2003-1754
Application No. 09/821,137 Page 12
However, those experiments were conducted without pushing
down on the outer ring of the “Tartmaster”, an action which Mr.
Cooke concedes would result in the clean cutting of the bread
(Cooke declaration, paragraph No. 6).
We agree with the examiner’s criticisms of those
declarations as set forth at pages 9 and 10 of the answer.
Moreover, we note that the Cooke and Levine declarations merely
refer to using a device like a Tartmaster in the experiments
conducted, not the Tartmaster of the applied Kaiser reference,
which teaches cutting and sealing bread slices to form sandwiches
with the Tartmaster thereof. Nor do those declarations specify
the type or thickness of the bread slices employed in the
experiments conducted. In this regard, the appealed claims are
open to any type and size of sliced bread that may be cut and
sealed whereas the specific types of bread and fillings used in
the brand name “Uncrustables” comparison was not even disclosed
in the declarations. Moreover, Kaiser clearly illustrates that
fingers and/or a thumb are placed on the outer cutting cylinder
in using the device as illustrated in the figure at the top left
corner of page 7. Also, see pages 9 and 30 of Kaiser. As
explained by the examiner, one of ordinary skill in the art would
have recognized that pushing on the outer cutting area was an
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