Appeal 2007-1018
Application 10/376,782
We have thoroughly reviewed the respective positions advanced by
Appellants 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. Appellants make
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 Appellants’ 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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Last modified: September 9, 2013