Appeal No. 2003-1775
Application No. 09/845,925 Page 10
plunger simultaneously with or after the cutting to seal and
crimp the perimeter would have been readily recognized options by
one of ordinary skill in the art seeking to optimize the cutting
and sealing operations.
Furthermore, we agree with the examiner’s criticisms of the
declaration evidence as set forth at pages 7-9 of the answer.
Appellants’ claim 39 is not limited to the specific product
depicted in drawing figures 3 and 4 of their application.
Moreover, we note that the second Levine declaration merely
refers to using a device like a Tartmaster in the experiments
conducted, not the Tartmaster, such as the plunger-containing
models H2001 or H2003 of the applied Kaiser reference, which
teaches cutting and sealing bread slices to form sandwiches with
the Tartmaster devices thereof.5 Nor does that declaration
5 Also, we note that the Levine declarations do not test the
Krimpkut and Tartmaster devices not having a plunger, such as the
H1000 -H1015 and H2009 devices shown on the unnumbered pages
preceding the Table of Contents page and declaration. As is
readily apparent from an inspection of those other Tartmaster
devices not having a plunger and the Krimpkut sealer together
with the illustrations and text explaining the use thereof,
Kaiser reasonably suggests to one of ordinary skill in the art
how those devices would also be usable in forming crustless
sandwiches having a centrally located filing with the sandwich
having sealed edges as claimed herein. See, e.g., the cover
pages, unnumbered pages and pages 7, 8, 11 and 48 of Kaiser.
Using those devices in a fashion so as to cut off the crust and
seal the remaining perimeter would have been readily accomplished
by one of ordinary skill in the art seeking to optimize the
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