Ex Parte Rosenbaum

Patent Trial and Appeal Board

May 30, 2014

12190823 (P.T.A.B. May. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL
AND APPEAL BOARD

____________

Ex parte RICHARD W. ROSENBAUM
__________

Appeal 2012-005636
Application 12/190,823
Technology Center 2800
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Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1, 4, 6, and 7. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant’s invention is directed to a solar powered water bubbler to
prevent freezing in animal watering vessels (Spec. para. [0001]; claim 1).
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Claims 1, 4, and 6 are illustrative:
1. A system for preventing outdoor ice build-up in an outdoor a pet or
animal watering vessel, comprising:
a pet or animal watering vessel containing water;
a solar panel outputting electrical power;
a rechargeable battery in electrical communication with the solar
panel for storing the electrical
an electrically operated air compressor powered by the battery;
a bubbler unit in pneumatic communication with the air compressor,
the bubbler unit being submersed in the water to be kept from freezing;
electrical switching apparatus to control the power supplied to the
battery and the power supplied to the compressor from the battery;
a controller operative to activate the switching apparatus on a per-
demand basis; and
at least one thermometer in electrical communication with the
controller, the controller being operative to activate the bubbler if potential
freezing is detected by the thermometer.

4. The system of claim 1, including a plurality of thermometers, one
disposed in the water to be protected from freezing, and another being
disposed outside of the water to test for ambient air temperature.

6. The system of claim 1, wherein the solar panel and electronic
components are disposed in a floating housing.

Appellant appeals the following rejections:
1. Claim 1 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tweedy (US 4,279,537, patented Jul. 21, 1981) in view of
Keeton, Jr., (US 6,676,837 B2, patented Jan. 13, 2004) and Gholz (US
6,079,362, patented Jun. 27, 2000).
2. Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tweedy in view of Keeton, Jr., Gholz, and Gifford et al. (US
2007/0014680 A1, published Jan. 18, 2007).
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3. Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tweedy in view of Keeton, Jr., Gholz and Essig, Jr.
et al. (US 2006/0033674 A1, published Feb. 16, 2006).

Appellant’s arguments focus on the subject matter of claims 1, 4, and 6
(App. Br. 3-6). The rejection of claim 7 will stand or fall with our analysis
of claim 6.

REJECTION (1)
ISSUE
Did the Examiner reversibly err in finding that the combined
teachings of Tweedy, Keeton, Jr., and Gholz would have suggested the
subject matter of claim 1 that includes at least one thermometer in electrical
communication with the controller, the controller being operative to activate
the bubbler if potential freezing is detected by the thermometer? We decide
this issue in the negative.

FINDINGS OF FACT AND ANALYSIS
Appellant argues that it would not have been obvious to combine the
teachings of Tweedy, Keeton, Jr., and Gholz because neither Tweedy nor
Keeton, Jr. would benefit from the teachings of Gholz (App. Br. 5).
Appellant contends that Tweedy uses a timer to control when the bubbler is
activated and has no use of a thermometer to control bubbler activation
because Tweedy does not sense if potential freezing is detected. Id.
Appellant argues that Keeton, Jr. is directed to maintaining oxygen levels
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such that thermostatic control would be unnecessary and superfluous. Id.
Appellant argues that since Gholz is the only reference related to an “animal
water vessel” and Gholz already has a de-icing mechanism for protecting the
water in the vessel from freezing, “it would [not] have been prima facie
obvious to combine Gholz with any other reference.” (Id., Reply Br. 2).
The Examiner finds that Tweedy discloses a bubbler that prevents the
icing over of ponds that discloses most of the limitations of claim 1, except
for the use of a rechargeable battery and a solar panel, an animal watering
vessel, and using a thermometer in electrical communication with the
controller, which activates the bubbler if potential freezing is detected by the
thermometer (Ans. 5-6). The Examiner finds that Keeton, Jr. teaches using a
solar panel and rechargeable battery to power a compressor that is connected
to a bubbler unit in a pond (Ans. 5). Keeton, Jr. discloses using bubblers in
the winter months to prevent ice formation on ponds (Keeton, Jr., col. 2, ll.
14-22). The Examiner further finds that Gholz discloses an animal watering
vessel that uses a thermometer in communication with a controller to control
when a heater is activated to prevent ice formation (Ans. 6).
Gholz further teaches that the stock watering tank (i.e., the animal
watering vessel) includes naturally occurring ponds (Gholz, col. 1, ll. 41-48).
Gholz teaches that the control mechanism for the stock watering tank may
include both a timer and a thermometer to control the heater in the tank
(Gholz, col. 2, ll. 16-38).
Based upon these findings, the preponderance of the evidence favors
the Examiner’s conclusion that the claimed invention would have been
obvious in light of the combined teachings of the applied prior art. Keeton,
Jr. discloses that using a photovoltaic cell and rechargeable battery enable
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the use of bubblers in remote ponds that are off the grid (Keeton, Jr. col. 1,
ll. 65-67; col. 2, ll. 1-3). Keeton, Jr. and Tweedy teach that using bubblers
in the winter prevent the icing over of ponds. Accordingly, it would have
been obvious to modify Tweedy’s bubbler device to include a photovoltaic
cell with a rechargeable battery to permit the bubbler to be used in remote
locations to prevent ponds from icing over. Tweedy, as argued by
Appellant, uses a timer to control the bubbler. Gholz teaches that a timer
and/or a temperature sensor (i.e., thermometer or thermocouple) may be
used to control the heater (i.e., the deicing equipment). Gholz would have
suggested to the ordinary artisan that a temperature sensor may be used with
or in lieu of Tweedy’s timer to control deicing equipment (i.e., bubbler).
The combination or substitution of Gholz’s temperature sensor with or for
Tweedy’s timer control appears to be nothing more than the predictable use
of a prior art element (i.e., timer and/or thermometer) according to its
established function (i.e., measuring time or temperature to determine when
to activate deicing equipment). KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007). Moreover, the claims are open-ended and do not exclude the
use of a timer, in addition to a thermometer, to control the bubbler.
Contrary to Appellant’s arguments, Keeton, Jr. teaches that it is
known to use bubblers in the winter to prevent ponds from icing over (col. 2,
ll. 14-22). Keeton, Jr. is not directed solely to oxygenating ponds.
Tweedy’s use of a timer does not dissuade the ordinarily skilled artisan from
using a temperature sensor to further control the deicing equipment such as
the bubbler as taught by Gholz. Appellant’s argument that Gholz already
had de-icing equipment such that it would not have been obvious to combine
Gholz with any other reference fails to specifically show error in the
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Examiner’s rejection which is premised on using Gholz’s temperature
sensing control mechanism in the de-icing bubbler of Tweedy.
On this record, we affirm the Examiner’s § 103 rejection of claim 1.

REJECTION (2): CLAIM 4
Appellant contends that the Examiner’s rationale for combining
Gifford’s second temperature sensor with the bubbler suggested by the
combined teachings of Tweedy, Keeton, Jr., and Gholz merely restates
Appellant’s reason for adding a second temperature sensor and such a reason
does not justify the combination of the four prior art references (App. Br. 6).
Appellant contends that there is no evidence that any of the references would
benefit from an early warning detection system as the Examiner finds is a
basis for combining the second temperature sensor with Tweedy (Reply Br.
2).
Contrary to Appellant’s argument, Gifford teaches controlling a
bubbler based upon air and/or water temperature (para. [0028]). Gifford
teaches that if the temperature is extremely cold or windy the bubbler flow
could be increased to prevent icing over of the fishing hole. Id.
Based on Gifford’s teachings, we conclude that it would have been
obvious to one of ordinary skill in the art to use a separate temperature
sensor for measuring the air temperature to control bubbler operation. The
Examiner’s finding that one of ordinary skill in the art would have combined
Gifford’s teachings of an air temperature sensor with Tweedy’s bubbler to
anticipate colder temperatures and control the bubbler is only challenged by
Appellant on the basis that there is no factual evidence that Tweedy’s
bubbler would benefit from an early warning system (Reply Br. 2).
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However, Gifford’s teachings that windy conditions and extremely cold
temperatures prompt the bubbler flow to increase supports the Examiner’s
finding that an early detection system would have been recognized in the art
as beneficial (Gifford, para. [0028]). Plainly, extremely cold temperatures
and windy conditions include environmental conditions surrounding the
pond and these parameters portend that freezing of the water is likely. These
environmental conditions would have prompted an air temperature sensor
that increases bubbler flow to avoid the water from icing over.
Moreover, even if the art does not recognize the benefits of an early
warning system as argued by Appellant, the obviousness analysis need not
seek out precise teachings directed to the specific subject matter of the claim
for a court can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ. KSR, 550 US at 418. As noted
supra, a person of ordinary skill would have inferred from the teachings of
the references that using a second temperature sensor to predict/detect
probable imminent icing due to ambient environmental conditions such as
extremely cold temperatures and windy conditions would have been
desirable.
On this record, we affirm the Examiner’s § 103 rejection of claim 4.

REJECTION (3): CLAIM 6
Appellant argues that the Examiner’s reason for modifying Tweedy’s
bubbler device to include a floating support as taught by Essig, Jr. in order to
harness wave power and increase mobility of the system does not follow
from the teachings of the references (App. Br. 5-6). Appellant contends that
Tweedy, Keeton, Jr., and Gholz do not have any need to harness wave power
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nor do they have any issues with mobility. (App. Br. 6.) Appellant further
contends that the Examiner’s rationale for the combination on page 11 of the
Answer lacks evidence that a floating solar panel would enhance solar
collection or protect electronics from water damage (Reply Br. 2).
Appellant does not dispute the Examiner’s finding that Essig, Jr.
teaches an energy harnessing apparatus wherein the solar panels and
electronic components are disposed in a floating condition (Ans. 7). Essig,
Jr. discloses a highly portable solar energizing apparatus that may be used in
marine environments (Essig, Jr. para. [0004]). While Appellant contends
that the prior art of Tweedy, Gholz, and Keeton, Jr. do not recognize any
issue with mobility, we find that the prior art as a whole would have
suggested that placing the solar panels on a floatation device as taught by
Essig, Jr. would have increased the mobility of the device by permitting its
use in larger bodies of water where shore access is distant or difficult. A
person of ordinary skill is also a person of ordinary creativity, not an
automaton. KSR, 550 US at 421.
Appellant disputes whether a floating solar panel enhances collection
of solar energy as the Examiner relies on this as another reason for
modifying Tweedy, Keeton, Jr. and Gholz with Essig, Jr.’s teachings. It is
not necessary for us to weigh in on this matter as we find that teachings of
the references would have been combined for greater mobility as found by
the Examiner. In any event, we find that placing a floating solar panel in the
middle of a body of water would likely provide greater solar collection.
On this record, we affirm the Examiner’s § 103 rejection of claims 6
and 7.
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DECISION
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
ORDER
AFFIRMED

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