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In Re Arnold G. Klein

June 6, 2011

IN RE ARNOLD G. KLEIN


Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.

The opinion of the court was delivered by: Schall, Circuit Judge.

(Serial No. 10/200,747)

Before NEWMAN, SCHALL, and LINN, Circuit Judges.

Arnold G. Klein appeals the final decision of the Board of Patent Appeals and Interferences ("Board") affirming the rejection of certain claims of U.S. Patent Application No. 10/200,747 ("'747 application") as obvious under 35 U.S.C. § 103. Ex Parte Arnold Gregory Klein, No. 2009-005721 (B.P.A.I. Mar. 29, 2010) ("Decision"). Because the Board's finding that five references at issue are analogous art is not supported by substantial evidence, the obviousness rejections cannot be sustained and, accordingly, we reverse.

BACKGROUND

I.

Mr. Klein filed the '747 application, titled "Convenience Nectar Mixing and Storage Devices," on July 24, 2002. The '747 application concerns a mixing device for use in preparation of sugar-water nectar for certain bird and butterfly feeders. J.A. 23. According to the specification, the device has a series of rails that, when engaged with a divider, allow for the creation of two compartments for separating sugar and water within the device. J.A. 27, 101. The rails are located to divide the device into proportionate volumes of one part sugar to four parts water (to make hummingbird nectar), one part sugar to six parts water (to make oriole nectar), and one part sugar to nine parts water (to make butterfly nectar). Id. Once the respective compartments have been filled to the same level with sugar and water, the divider is removed, allowing the sugar and water to mix and be stirred. J.A. 25,

27. The specification does not suggest that the sugar to water ratios are novel, instead disclosing in the "Background of the Invention" that these ratios are "currently recognized as being proportionally equivalent in sugar content as the birds, and butterflies [sic] natural nectar food sources." J.A. 24.

Figures 1, 2A-2B, and 4 of the '747 application, shown below, illustrate device 11, divider 21, and rails 15, 16, and 17:

J.A. 112. The sole independent claim at issue, claim 21, recites:

21. A convenience nectar mixing device for use in preparation of sugar-water nectar for feeding hummingbirds, orioles or butterflies, said device comprising:

a container that is adapted to receive water, receiving means fixed to said container, and a divider movably held by said receiving means for forming a compartment within said container, wherein said compartment has a volume that is proportionately less than a volume of said container, by a ratio established for the formulation of sugar-water nectar for hummingbirds, orioles or butterflies, wherein said compartment is adapted to receive sugar, and wherein removal of said divider from said receiving means allows mixing of said sugar and water to occur to provide said sugar-water nectar.

J.A. 403. The remaining claims at issue, claims 22-25, 29, and 30, each depend from claim 21. J.A. 403-04.

In a final rejection dated September 24, 2007, the examiner made five separate rejections under 35 U.S.C. ยง 103(a): (1) a rejection of claims 21, 22, and 30 over U.S. Patent No. 580,899 ("Roberts") in view of the prior art sugar to water ratios discussed in the Klein specification; (2) a rejection of claims 21, 22, and 30 over U.S. Patent No. 1,523,136 ("O'Connor") in view of the prior art sugar to water ratios discussed in the Klein specification; (3) a rejection of claims 21, 22, and 30 over U.S. Patent No. 2,985,333 ("Kirkman") in view of the prior art sugar to water ratios discussed in the Klein specification; (4) a rejection of claims 21-25 and 29 over U.S. Patent No. 2,787,268 ("Greenspan") in view of the prior art sugar to water ratios discussed in the Klein specification; and (5) a ...


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