Appeal No. 2003-1754
Application No. 09/821,137 Page 15
product sandwiches of Kaiser that are made with two slices of
bread have both bread portions exposed at the periphery.
As for the spaced pressure points of claim 47 and 53, we
agree with the examiner that use of the Tartmaster inner sealing
and crimping element (ring) will result in spaced pressure points
or depression as claimed as fairly represented by the products
depicted on the cover page of Kaiser. Concerning appellants’
reference to the packing step of claims 53 and 54 at page 35 of
the brief, the mere reference to that limitation recited in those
claims does not serve as a separate argument for the
patentability of those dependent claims. See 37 CFR
§ 1.192(c)(7)(2002); and In re McDaniel, 293 F.3d 1379, 1383, 63
USPQ2d 1462, 1465 (Fed. Cir. 2002).
To be of probative value, any secondary evidence must be
related to the claimed invention (i.e., a nexus is required).
Thus, the weight attached to evidence of secondary considerations
will depend upon its relevance to the issue of obviousness and
the amount and nature of the evidence. To be given weight in the
determination of obviousness or nonobviousness, evidence of
secondary considerations must be relevant to the subject matter
as claimed, and therefore we must determine whether there is a
nexus between the merits of the claimed invention and the
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