Appeal 2006-2171
Application 10/840,715
finds that “[e]xcessive leakage into the facility [i.e, sump] 46 of Herzhauser
could cause the pump 48 to run to the extent that the battery is exhausted or
the leakage could be so excessive that the facility [i.e, sump] 46 overflows
into the bilge area” (Answer 14). Because Price provides a monitor of bilge
pump operation, and because the pump 48 of Herzhauser is effectively a
bilge pump, the Examiner concludes “suggestion is present for monitoring
the operation of pump 48 of Herzhauser with [an] apparatus similar to that of
Price” (Answer 14).
The Examiner further responds that “if Price teaches monitoring of
leakage into the bilge of a sea craft, then monitoring of all types of leakage
into the bilge of the sea craft is undertaken including leakage from a stuffing
box” (Answer 15).
We agree with the Examiner’s ultimate conclusion that claim 1 is
unpatentable under § 103(a) over Herzhauser in view of Price.
Appellant’s argument that Herzhauser teaches away from the
combination is not persuasive. While Herzhauser teaches that the water
collected in sump 46 is removed in the “usual manner,” such disclosure does
not discourage the solution claimed (i.e., monitoring the sump). In re
Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004)
(explaining “[t]he prior art’s mere disclosure of more than one alternative
does not constitute a teaching away from any of these alternatives because
such disclosure does not criticize, discredit, or otherwise discourage the
solution claimed”).
Rather, we agree with the Examiner that Price’s disclosure to monitor
the “rate of leakage” of water to avoid catastrophic results such as
exhausting the bilge pump battery or overwhelming the bilge pump (Price,
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