Appeal No. 2003-1775
Application No. 09/845,925 Page 15
edge thereof, as well as our rebuttal of appellants’ arguments
and evidence concerning such structure. We note that appellants
(brief, page 19) maintain that “a jelly layer, ‘encapsulated by
peanut butter’ of the peanut butters layers” is a limitation
required by claims 40 and 41, which is not taught by the combined
teachings of Kaiser and Shideler. Respecting the filling,
independent claim 408 requires:
a first layer of peanut butter between said bread
portions in an area within, but smaller than said first
and second outer margins, a layer of jelly generally
centered on said first layer of peanut butter leaving
an exposed surface of said first peanut butter layer
surrounding said jelly layer, a second layer of peanut
butter . . . . and sealed to said first peanut butter
layer at said exposed surface whereby said jelly is
encapsulated by peanut butter of said layers . . . .
Kaiser (page 11) teaches that the sandwich filling can be
selected from a relatively small list of ingredients that
includes peanut butter and jelly or jam as separately listed
ingredients. Kaiser teaches that a combination of the listed
ingredients may be used (Of course, one of ordinary skill in the
8 We consider claim 40 to be a representative claim for this
grouping of claims. Concerning appellants’ reference to the
features of claim 41 at page 28 of the brief, we do not consider
that reference to limitations recited in claim 41 as a separate
argument for the patentability of that dependent claim. See
37 CFR § 1.192(c)(7)(2000); and In re McDaniel, 293 F.3d 1379,
1383, 63 USPQ2d 1462, 1465 (Fed. Cir. 2002).
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: November 3, 2007