Appeal No. 2006-1147 Page 5
Application No. 10/248,569
hummingbird feeder, and it does not teach a cover that provides the degree of
coverage that is claimed. (Appellant’s Brief, p. 7).
The examiner responded that shades are notoriously well known to be used
in all types of feeders to protect the food from environmental factors that may spoil
the food. (Examiner’s Answer, pp. 3-4). The examiner further argued that the
appellant failed to disclose a critical reason why the shade has to have a diameter
that is at least twice the diameter of the reservoir and that a change in size is
generally recognized as being within the level of ordinary skill in the art. In re
Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). (Examiner’s Answer, p. 4).
The examiner also responded that it would have been obvious to use an opaque
shade as taught in Runyon because it is merely a selection of a known material
based on its suitability for the intended use as a matter of design choice. In re
Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960). (Examiner’s Answer, p. 5).
We disagree with the appellant’s argument that Brown teaches away from
adding a shade to its birdfeeder. “A reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction divergent
from the path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990, 78
USPQ2d 1329, 1338 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1132 (Fed. Cir. 1994)) (internal quotation marks omitted).
Brown’s description of its “perfect feeder” omits any mention of a shade of any
kind. We do not agree that merely because Brown refers to the proposed feeder as
“perfect” and omits any reference to a shade that this disclosure would lead one of
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