Appeal No. 2003-1754
Application No. 09/821,137 Page 20
such bread slices, leaving the crimping and sealing via the
plunger as a second independent step.
Appellants have the burden of showing that any evidence of
commercial success presented is a direct result of the unique
characteristics of the claimed subject matter. See In re Huang,
100 F.3d 135, 140, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996). While
claims 45 and 48-52 are drawn to a peanut butter and jelly
(fruit) sandwich making method, appellants have not established
such a nexus between the claimed invention and the evidence of
commercial success (Oakland declarations, Purcell declaration) .
Moreover, we agree with the examiner’s criticism of the
commercial success evidence as set forth in the answer. Also,
the effect of the particular bread recipe employed and the
amounts and specific types of peanut butter and jelly for the
sandwiches to which the sales figures and other evidence relate
have not been established on this record. Nor have appellants
furnished any sales figures for competing products. As such, it
is not clear from the submitted evidence if the sales are due to
any potential merit of the present invention or if they are the
result of other factors. On this record, we do not find
appellants’ evidence persuasive.
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