Appeal 2007-1374
Application 10/701,714
3. Claims 7 and 14 are rejected under 35 U.S.C § 103(a) as unpatentable
over Zhu and Montgomery and further evidenced by Lunsford ‘835.
II. DISCUSSION
A. Issue
The Examiner finds that Zhu suggests an intimate blend of staple
fibers as required by part (a) of claim 1 (Answer 3). The fibers are used for
making clothing that is flame resistant in accordance with the claimed
requirements (id.). The Examiner acknowledges that while Zhu exemplifies
dyed fabric, Zhu does not use a dye that will meet the claimed conspicuity
requirements for occupational activities for high visibility safety apparel
(id.), i.e., Zhu does not disclose using dyes such as standard International
Orange dyes. According to the Examiner, it would have been obvious to one
of ordinary skill in the art to have used the International Orange dye
formulation taught by Montgomery for use in the fire resistant safety apparel
of Zhu to provide high visibility (id.).
Appellants’ sole contention on appeal is that there is no teaching,
suggestion, or motivation to modify the fabric of Zhu with the International
Orange dye of Montgomery (Br. 9). According to Appellants, Zhu only
discloses dying a scoured fabric with acid dye and does not recognize a
conspicuity and/or high visibility problem (id.). Moreover, according to
Appellants, Montgomery describes a different kind of material, a fabric from
corespun yarn, and does not recognize that an intimately blended yarn and
fabric structure must meet the standards described in Appellants’
Specification (id.). Appellants also note that while Montgomery discloses
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