Appeal No. 2003-1754
Application No. 09/821,137 Page 13
option during use of the device in a manner similar to the way a
cookie cutter is known to be used.6 Indeed, the Cooke
declaration (paragraph No. 6) acknowledges that such an operation
would result in positively cutting the bread slices. As such,
appellants have not discharged their burden of establishing that
the Tartmaster of Kaiser would not cut and seal as described
therein at pages 11, 30 and 43.
Appellants refer to a more recent Pampered Chef catalog and
a new pamphlet sheet allegedly sold with the Cut-N-Seal (item 6,
attachment D and item 7 of supporting appeal documents) as
showing the placement of fingers on the cutting edge and as
evidence that the applied earlier Kaiser disclosure could not
6 While appellants acknowledge the factual finding of the
examiner concerning conventional cookie cutter operation (reply
brief, (page 4), appellants have not furnished specific and
convincing countervailing arguments denying the existence of such
knowledge in the art and/or explaining why that knowledge would
not have been recognized by one of ordinary skill in the art as
being applicable to use of the Tartmaster in making sandwiches.
On this record, we shall accept the examiner’s particularized
factual determinations set forth in the answer concerning the
known operation of cookie cutting devices. See In re Fox, 471
F.2d 1405, 1407, 176 USPQ 340, 341 (CCPA 1973); In re Boon, 439
F.2d 724, 727-28, 169 USPQ 231, 234 (CCPA 1971); In re Ahlert,
424 F.2d 1088, 1091-92, 165 USPQ 418, 420-21 (CCPA 1970). From
our perspective, one of ordinary skill in the art would have
recognized that pushing on the outer ring of the Tartmaster of
Kaiser for cutting the bread was an available option.
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