Appeal No. 2003-1754
Application No. 09/821,137 Page 19
to protect the bread from contact with the jelly, the examiner
has fairly determined that one of ordinary skill in the art at
the time of the invention would have drawn the reasonable
inference from the teachings of the applied references that the
peanut butter should be applied in a manner so as to encapsulate
the jelly, that is, the jelly layer would be made smaller in area
so that it does not contact the bread. We again observe that
Kaiser (page 11) suggests that a 1/4 inch margin free of filling
should be maintained “for a secure seal.”
For reasons as set forth in the answer and above, we do not
find appellants’ arguments concerning a lack of motivation or
suggestion for the examiner’s proposed combination of references
to be persuasive. Similarly, we do not agree with appellants’
assessment of the teachings of Kaiser with respect to forming a
sealed crestless sandwich for the reasons set forth above and in
the answer. We emphasize that Kaiser describes cutting bread
slices with the Tartmaster. To the extent appellants’ arguments
and evidence suggest otherwise if only the plunger is pressed for
certain bread slices, that argument and evidence merely
reinforces the examiner’s viewpoint that one of ordinary skill in
the art would have recognized that (direct) force on the outer
cutting cylinder of the Tartmaster should be applied by hand for
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