In Re Klein

647 F.3d 1343 (2011)

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Nature of the Case

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Facts

P applied for a patent on a device used for preparing nectar for bird and butterfly feeders. 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. 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). Removing the divider and the sugar and water proper mix can be stirred. The examiner made five separate rejections under §103(a) with the prior art patents. The Board affirmed each of the five obviousness rejections. Roberts, O'Connor, Kirkman, Greenspan, and De Santo as each 'teaching a device with a container having a movable divider held in place by a 'receiving means,' such as slots, grooves, or threads, which could be used to divide ingredients in specific ratios.' Roberts, O’Connor, and Kirkman taught drawer organization designs, with movable dividers separating drawers into compartments to organize different-sized items. Greenspan disclosed a bottle with two compartments separated by a plugged, nonadjustable wall. Removing the plug allowed the plasma and water to mix. De Santo disclosed a fluid container with two compartments separated by a fixed wall, which could be removed to mix the ingredients. The Board affirmed that a person of ordinary skill in the art would combine this prior art to create the different feeding regimens. D appealed. P contends that the Board failed to make any finding that any of the cited references are reasonably pertinent' to the problems of feeding hummingbirds, orioles, and butterflies.