Appeal No. 2003-1775
Application No. 09/845,925 Page 17
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 crustless sandwich for the reasons set forth above and in
the answer.
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 40 and 41 are drawn to a peanut butter and jelly sandwich,
appellants have not established such a nexus between the claimed
invention and the evidence of commercial success of record
(Oakland declarations, Purcell declaration). In this regard, we
agree with the examiner’s criticism of the commercial success
evidence as set forth in the answer. Also, the effect on sales
of the particular bread recipe employed and the amounts and
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