Ex Parte Howard et al - Page 7

                 Appeal 2007-0875                                                                                      
                 Application 10/774,692                                                                                
                 Ohmura teaches that exposing the crumb portion by dividing (slicing) the                              
                 bread is “not preferable” (col. 6, ll. 54-64; see factual finding (4) listed                          
                 above), all disclosures of Ohmura, including unpreferred embodiments, must                            
                 be considered in determining obviousness for what they fairly would have                              
                 suggested to one of ordinary skill in this art.  Whether the heat treatment is                        
                 done before or after slicing, at least some portion of the bread slices will be                       
                 “toasted” as construed above.                                                                         
                        For the foregoing reasons and those stated in the Answer, we affirm                            
                 the rejection of all of the appealed claims under  103(a) over Ohmura.  The                          
                 decision of the Examiner is affirmed.                                                                 
                        No time period for taking any subsequent action in connection with                             
                 this appeal may be extended under 37 C.F.R.  1.136(a)(1)(iv)(2006).                                  

                 Fitch, Even, Tabin & Flannery                                                                         
                 120 S. LaSalle Street                                                                                 
                 Suite 1600                                                                                            
                 Chicago, IL   60603-3406                                                                              


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