Appeal 2007-0002
Application 10/188,485
Claims 4 and 9 recite that the layers of bread are two half-portions of a
submarine roll. Although Naramura describes its bread halves as “crowns” and
“heels,” which connote hamburger buns or the like, it would have been obvious to
one skilled in the art to use a submarine roll instead of a hamburger roll depending
on the variety of sandwich that one were making, as submarine rolls were known
in the art and commonly used on a wide variety of sandwiches, as mentioned, for
example in the Recipe, which discloses using a hoagie, po’boy, or Italian-style
sandwich roll.
Claims 5 and 7 further recite that the toasting step is performed by
conveying the bread through an impinging oven. Smith discloses an impingement
oven having a conveyor for supporting the food product as it travels through the
oven (FF 23). It would have been obvious to use the impingement oven of Smith
to toast the bread for the same reasons provided above for claim 1.
Claims 6 and 10 further recite the step of removing a moist byproduct from
the sandwich contents prior to disposing the sandwich contents on the bread. It
would have been obvious to remove moisture from the sandwich contents before
placing them on the bread to keep the bread from becoming soggy since the whole
purpose of separately toasting the bread is to keep the bread crisp.
CONCLUSIONS OF LAW
We conclude that the Examiner failed to make a prima facie show of
obviousness of claims 1 and 3-10 over the Recipe and Russell. We conclude,
however, that claims 1 and 4-7 would have been obvious to one having ordinary
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