Appeal No. 2003-1775
Application No. 09/845,925 Page 11
specify the type or thickness of the bread slices employed in the
experiments conducted. In this regard, the appealed claims are
open to any type and size of sliced bread that may be cut and
sealed whereas the specific types of bread and fillings used in
the brand name “Uncrustables” comparison was not even disclosed
in the declarations. Moreover, Kaiser clearly illustrates that
fingers and/or a thumb are placed on the outer cutting cylinder
in using the plunger-containing Tartmaster device as illustrated
in the figure at the top left corner of page 7. Also, see pages
9 and 30 of Kaiser. As such, appellants have not discharged
their burden of establishing that the Tartmaster or Krimpkut
devices of Kaiser would not cut and seal as described therein,
such as at pages 7, 11, 30, 43 and 48, and result in an edges
seal as claimed.
In the reply brief (fourth page), appellants misinterpret
the disclosure of Kaiser by asserting that “there is no concern
about filling preventing the bread portions from holding together
. . . .” In fact, Kaiser (page 11) teaches “leaving a 1/4 inch
cutting and sealing operations in making such a sandwich.
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