Ex Parte Pedigo - Page 5



               Appeal 2007-1022                                                                       
               Application 10/778,414                                                                 

                     We have thoroughly reviewed the respective positions advanced by                 
               Appellant and the Examiner.  In so doing, we find that the Examiner’s                  
               rejection is not sustainable.                                                          
                     The appealed claims require that the safety strip comprising                     
               phosphorescent material be “engaged with” the webbing.  We interpret the               
               claim language to mean that the safety strip is separate and distinct, i.e., not       
               one and the same with the synthetic yarns of the webbing.  Appellant makes             
               the argument that Geisel “does not teach a safety device or a strip containing         
               phosphorescent material attached to the webbing [but] teaches only a single            
               article formed of material containing phosphorescent material” (Br. 9, fourth          
               para.).  The Examiner does not directly address this argument, but                     
               essentially reiterates the rejection at page 5 of the Answer regarding “Geisel         
               teaches melt-spinning a yarn with a luminescent pigment or coating a fiber             
               with a luminescent pigment and creating a fibrous material such as a fiber,            
               ribbon, woven, knit, etc.” (Answer 5, second para.).  While the Examiner’s             
               statement is true it does not refute Appellant’s reasonable argument that              
               while Geisel teaches a webbing made of phosphorescent synthetic yarns, it              
               does not describe a webbing of synthetic yarns having a safety strip engaged           
               with the webbing.  Accordingly, we find that the Examiner has not made out             
               a prima facie case of description of the claimed subject matter within the             
               meaning of § 102.                                                                      
                     Upon return of this application to the Examiner, the Examiner should             
               consider a rejection of the claimed subject matter under 35 U.S.C. § 103               

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