Appeal No. 2004-0461
Application No. 09/532,371
We have thoroughly reviewed the respective positions
advanced by appellants and the examiner. In so doing, we find
that the examiner has failed to establish a prima facie case of
obviousness for the subject matter defined by claims 14-21 on
appeal. On the other hand, we find ourselves in agreement with
the examiner that the subject matter of claims 25-37 would have
been obvious to one of ordinary skill in the art within the
meaning of § 103 in view of the applied prior art. Accordingly,
whereas we will not sustain the examiner's § 103 rejection of
claims 14-21, we will sustain the examiner's rejections of claims
25-37 for essentially those reasons expressed by the examiner.
Appealed claim 14, and claims dependent thereon, require
that the phosphorescent layer residing on the outer surface of
the tire be "substantially free of rubber." For evidence of the
obviousness of this claimed feature the examiner relies upon the
disclosures of Rogal and Kubota. It is the examiner's position
that Rogal, which discloses the inclusion of phosphorescent
material visible on the outside surface of a tire, teaches that
the phosphorescent material "is either embedded within a side
rubber layer or applied to an outside of said side rubber layer
as a color film or layer (Page 6, Paragraph 2)" (page 6 of
Answer, lines 5-7). The examiner reasons that since Rogal does
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