Appeal No. 2004-0461
Application No. 09/532,371
The flaw in the examiner's position regarding Rogal is that
the examiner has failed to satisfy the initial burden of
establishing, in fact, that Rogal discloses a phosphorescent
layer that is substantially free of rubber. The most that can be
said of the Rogal disclosure is that it is silent with respect to
the composition of a phosphorescent layer in the second
embodiment referred to by the examiner. While it is true, as
stated by the examiner, that Rogal gives no examples wherein
rubber is a component of a phosphorescent layer that is applied
to the outside of the tire sidewall, this statement is quite
misleading because the reference gives absolutely no examples.
Simply put, Rogal's failure to describe the composition of the
color film that is applied to the side layers during the
vulcanization of new treads cannot serve as a teaching that the
phosphorescent layer fails to include any component that is not
mentioned, including rubber.
The examiner's position is also not aided by the disclosures
of Kubota and Kanenari. While the examiner cites Kubota for
teaching the absence of rubber in a fluorescent layer that is
applied to a tire, appellants' Reply Brief provides objective
evidence that the portion of Kubota cited by the examiner does,
indeed, disclose that the fluorescent paint comprises a synthetic
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