Appeal No. 2006-1147 Page 7
Application No. 10/248,569
Rejection of claims 8, 9, 11-16, 18-23, 25, and 26 as unpatentable over
Brown as modified by Barry
In the rejection of claims 8, 9, 11-16, 18-23, 25, and 26,1 the examiner has
determined that Brown discloses a hummingbird feeder as claimed except that
Brown is silent about a hood positioned over the reservoir and having the
dimensions as recited in the claims. (Final Office Action, pp. 4-8). The examiner
found that it would have been obvious to one having ordinary skill in the art at the
time the invention was made to employ the shade of Barry in the bird feeder of
Brown, “in order to provide full coverage of the reservoir, thus preventing the food
in the reservoir from being spoiled.” (Final Office Action, p. 5).
The appellant contends that Brown teaches away from using a cover at all in
its “perfect feeder” and that Barry teaches a transparent cover that would not
provide shade from direct sunlight as called for in the claims. (Appellant’s Brief,
p. 10).
We agree with the appellant that the teachings of Brown and Barry would
not have led a person of ordinary skill in the art at the time the invention was made
to have constructed a hummingbird feeder having a cover that functions as a shade.
As discussed above, Brown does not teach using any shade or cover on its
1 Independent claims 8, 16, and 22 all require a structure to provide shade to the reservoir.
Claim 8 requires a hood that is “constructed to shade the liquid reservoir from direct sunlight.”
Claim 16 requires that a hood that “casts a shadow entirely over the reservoir for a majority of a
travel distance of a light source passing over the feeder as the light source moves from a first
horizon to a second horizon 180° from the first horizon.” Claim 22 requires that the feeder
include, “means for providing shade to the means for providing sugar solution.” The appellant
makes the same argument for patentability for independent claims 8, 16 and 22.
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