Appeal No. 2006-1147 Page 6
Application No. 10/248,569
ordinary skill away from adding a shade to protect the reservoir from the elements.
As such, we do not find that Brown’s description of its “perfect feeder” would
discourage a person of ordinary skill from adding a shade to the Brown feeder to
shelter the reservoir from the elements.
Nonetheless, we agree with the appellant that the examiner has failed to
provide a convincing basis for a motivation to combine Runyon with Brown and
Barry to make a hummingbird birdfeeder with an opaque shade. Neither Brown,
Barry, nor Runyon teach or suggest using an opaque cover to provide shade to a
fluid reservoir of a hummingbird feeder. As discussed above, Brown does not
teach any cover on its hummingbird feeder. Barry teaches using a cover made of
transparent material on a seed feeder to keep out the elements and pests. (Barry,
col. 2, lines 64-65 “The cover and the container are constructed of polycarbonate.”)
Barry does not teach or suggest using its transparent cover to provide shade to the
seed container. Likewise, Runyon relates to a seed feeder and thus does not face
the same problem of spoilage of the feed from exposure to the sun as a nectar
feeder. As such, although Runyon teaches generally that its cover (27) “may be
opaque, translucent or transparent” (col. 4, lines 60-62), there is nothing in the
teaching of Runyon that would have led one of ordinary skill in the art at the time
of the invention possessed with the prior art Brown and Barry devices to have
modified the cover of Barry to make it opaque as taught in Runyon absent the
suggestion of the present specification, based on hindsight. Accordingly, we do
not sustain the rejection of the claims based on the combination of Brown, Barry,
and Runyon.
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