Appeal No. 2006-1147 Page 4
Application No. 10/248,569
shade (1) having a diameter that is at least twice as large as a diameter of the fluid
reservoir (2) and connected to the second end (5, 9, 7) of the center post such that
the shade substantially covers the fluid reservoir. (Final Office Action, p. 2). The
examiner found that it would have been obvious to one of ordinary skill in the art
at the time the invention was made to modify the bird feeder of Brown with the
shade of Barry “in order to cover the fluid reservoir and its content therein from
spoiling.” (Final Office Action, p. 3). The examiner relies on Runyon for the
teaching of a feeder having an opaque shade (27). The examiner found that it
would have been obvious to one of ordinary skill in the art at the time the invention
was made to use an opaque shade on the bird feeder of Brown, as modified by
Barry, “in order to further protect the food in the reservoir from being spoil [sic] by
reflecting light from the sun.” (Final Office Action, p. 3).
The appellant contends that the examiner has failed to establish a prima facie
case for obviousness, because (1) the examiner has failed to establish that one
skilled in the art would have been motivated to combine Brown with Barry and
Runyon, and (2) the examiner has failed to show that the references teach or
suggest each and every element of the claimed invention. (Appellant’s Brief, p. 7).
Specifically, the appellant argues that Brown teaches away from adding an opaque
shade to its hummingbird feeder. (Appellant’s Brief, p. 6). The appellant further
argues that Barry specifically teaches a shade that is dimensionally different from
that called for in claim 1 and that is made from a transparent material. (Appellant’s
Brief, pp. 6-7). The appellant argues that Runyon neither teaches nor suggests that
its teachings relating to a seed feeder could be applied to a nectar-based
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