Lee Lefebvre

Patent Trials and Appeals Board

Nov 19, 2021

2021001811 (P.T.A.B. Nov. 19, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
16/381,047 04/11/2019 Lee Lefebvre NPL-1904-01 1098
143866 7590 11/19/2021
Nelson Patent Law
2283 Lalique Cir.
Colton, CA 92324
EXAMINER
HOGE, GARY CHAPMAN
ART UNIT PAPER NUMBER
3631
NOTIFICATION DATE DELIVERY MODE
11/19/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
dwayne@inlandip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEE LEFEBVRE
Appeal 2021-001811
Application 16/381,047
Technology Center 3600
Before CHARLES N. GREENHUT, CARL M. DeFRANCO, and
LISA M. GUIJT, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6 and 8–20.2 See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Lee Lefebvre. Appeal
Br. 3.
2 The Examiner withdrew the only rejection of claim 7. Ans. 9.
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CLAIMED SUBJECT MATTER
The claims are directed to an ornamental liquid display. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An ornamental fluid display comprising:
a body of fluid comprising a primary fluid;
a circulator operable to effect motion in said body of fluid;
an effect surface;
wherein said body of fluid comprises a silicone oil; and
whereby said body of fluid interacts with said effect
surface providing sensory interest.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Pfeuffer US 3,644,726 Feb. 22, 1972
Aoyagi US 5,167,993 Dec. 1, 1992
Kaviani US 5,778,576 July 14, 1998
Yang US 7,594,350 B2 Sept. 29, 2009
Pedersen US 8,479,421 B2 July 9, 2013
Yang ’495 US 2006/0257495 A1 Nov. 16, 2006
Kloppenberg US 2010/0001092 A1 Jan. 7, 2010
Hayden US 2017/0056915 A1 Mar. 2, 2017
Focaccia US 2018/0214902 A1 Aug. 2, 2018

REJECTIONS
Claim 7 was rejected under 35 U.S.C. § 112(a) as failing to comply
with the enablement requirement. Final Act. 3. However, the Examiner
withdrew this rejection. Ans. 9.
Claims 17–19 are rejected under 35 U.S.C. § 112(b) as being
indefinite. Final Act. 3.
Claims 1, 2, 4, and 9–14 are rejected under 35 U.S.C. § 103 as being
unpatentable over Yang and Aoyagi. Final Act. 4.
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Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Yang, Aoyagi, and Kaviani. Final Act. 5.
Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable over
Yang, Aoyagi, and Pedersen. Final Act. 5.
Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over
Yang, Aoyagi, and Hayden. Final Act. 5.
Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over
Yang, Aoyagi, and Yang ’495. Final Act. 6.
Claims 1, 2, 6, 9–11, and 13–15 are rejected under 35 U.S.C. § 103 as
being unpatentable over Kloppenberg and Aoyagi. Final Act. 6.
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kloppenberg, Aoyagi, and Kaviani. Final Act. 7.
Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kloppenberg, Aoyagi, as applied to claim 1, above, and Yang ’495. Final
Act. 7.
Claims 1, 2, 9–11, and 13–16 are rejected under 35 U.S.C. § 103 as
being unpatentable over Pfeuffer and Aoyagi. Final Act. 8.
Claim 20 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kloppenberg, Aoyagi, and Focaccia. Final Act. 8.
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
P1euffer, Aoyagi, and Kaviani. Final Act. 9.
Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over
Pfeuffer, Aoyagi, and Yang ’495. Final Act. 9.

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OPINION
Indefiniteness of claims 17–19
The Examiner’s rejection of claim 17 as being indefinite is essentially
premised on what the Examiner perceives to be the improper comingling of
features from distinct embodiments not described as combinable. At the
outset we note that although there are instances where inconsistencies
between the Specification and claims can give rise to definiteness issues
under 35 U.S.C. § 112(b) (see, e.g., MPEP § 2173.03 (9th ed. Rev. 10.2019,
rev. June 2020) and cases cited therein), this issue is more typically
addressed under 35 U.S.C. § 112(a) (see, e.g., MPEP § 2174 and cases cited
therein).
According to the Examiner, claim 17 is directed to the “bubble wall”
embodiment depicted in Figure 4 and described on page 5 of the
Specification. Final Act. 3. This point is not disputed. However, according to
the Examiner, in the Figure 4 embodiment, “the primary fluid is stationary.”
Id. The Examiner does not cite evidence in support of this finding. Reply Br.
8. In any case, the language of claim 1 does not even conflict with the
Examiner’s finding in this regard. Rather claim 1 recites that the circulator is
“operable to effect motion in said body of fluid” (emphasis added) which
does not necessarily require the circulator to be used to move the recited
“primary fluid.”
Claim 17 adds the container and a secondary fluid to the subject
matter of claim 1, and claim 19, which depends from claim 17, further
specifies that the circulator set forth in claim 1 cycles the secondary fluid
through the body of fluid. Appeal Br. 12; Reply Br. 8–9. This is consistent
with Appellant’s disclosure which indicates that a “circulator” may be a
pump (e.g., 380; Spec. p. 4, l. 4) and that an air pump 380 may be used to
Appeal 2021-001811
Application 16/381,047
5
pump a secondary fluid, such as air, through the fluid within the container.
Spec. p. 5, ll. 1–6; Reply Br 12. Thus, the “circulator operable to effect
motion in said body of fluid” language in claim 1 that the Examiner takes
issue with in the § 112(b) rejection set forth in the Final Action is, contrary
to the Examiner’s assertion (Ans. 11), reasonably regarded as generic to both
the embodiments depicted in Figures 1–3 and the “bubble wall” embodiment
depicted in Figure 4. Accordingly, we see no basis for the Examiner’s
determination that the subject matter of claim 17 is not compatible with that
recited in parent claim 1 under § 112(b) and to the extent the Examiner
intended so, under § 112(a).
In the Examiner’s Answer the Examiner essentially enters what may
be regarded as a new ground for rejection not designated as such in
accordance with 37 C.F.R. § 41.39(a)(2) by, for the first time, raising a
similar issue of compatibility between the subject matter of claim 17 and
that of claim 1, but instead focusing on the claim 1 language requiring “said
body of fluid interacts with said effect surface . . . .” Ans. 11. Although
Appellant filed a Reply Brief, Appellant does not appear to have addressed
this new issue. We therefore do not have the benefit of Appellant’s
explanation on this matter. Appellant’s embodiment depicted in Figure 4 is
not described as having an “effect surface” per se. Spec. p. 5. However,
mention is made of an “air bubble effect 390.” Id.
According to the Examiner, “bubbles ascending through the body of
fluid interact with an effect surface.” Ans. 12. However, the Examiner does
not identify what the Examiner is regarding as the “effect surface” for
purposes of the embodiment depicted in Figure 4. Presumably, it must be
something other than the surface of the bubbles. Although it is unclear if
perturbations or spill lips 130, which form the effect surfaces for purposes of
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the embodiments depicted in Figures 1–3, are combinable with the bubble
wall embodiment, it would seem, on the totality of the record before us, that
at the very least, perturbations or spill lips 130 could reasonably be
considered the “effect surface” for purposes of the embodiments depicted in
Figures 1–3, while the surfaces of the bubbles could constitute the “effect
surface” for purposes of the embodiment depicted in Figure 4. Thus, in this
regard, claim 1 would again be generic to the various disclosed
embodiments in Appellant’s Specification.
Again, not perceiving issues of claim clarity so much as supporting
disclosure, these issues are better addressed under § 112(a) and that being a
fact-specific inquiry, one that is best raised prior to an appeal so as to have a
fully developed record for review. Accordingly, we do not sustain the
Examiner’s § 112(b) rejection on this alternate basis either.

The prior art rejections
The Examiner made cumulative rejections against claim 1, which,
technically (i.e., under 37 C.F.R. § 41.37(c)(1)(iv)), is the only claim
separately argued. Although, we will address Appellant’s brief remarks with
regard to claim 15. See Appeal Br. 10.
Appellant styles the brief by making remarks with regard to each of
the primary references Yang, Kloppenberg, and Pfeuffer, and remarks with
regard to Aoyagi that are applicable to all three prior art rejections
applicable to claim 1. We address the references in the order they are
addressed in Appellant’s briefing.

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Yang
The Examiner relies on Yang’s picture frame enclosing a circulating
fluid with spangles as meeting the basic requirements of claim 1 albeit
without a silicone oil. Final Act. 4. Appellant recognizes the presence of the
spangles but argues that Yang is missing an “effect surface” with which the
“body of fluid interacts” thereby “providing sensory interest.” Appeal Br. 6.
Appellant’s argument in this regard does not address with specificity the
Examiner’s determination in the Final Action that the “inside walls of
channel 42” would be reasonably regarded as the recited “effect surface.”
Ans. 10. The Examiner’s determination in this regard seems reasonable
because Yang’s fluid “interacts with” the inside walls of the channel to
thereby cause the fluid to circulate around the picture frame and picture
thereby “providing sensory interest.” The Examiner reiterates this position in
the Answer. Id. Appellant does not provide any response. Thus, on the
record before us, Appellant makes only a naked assertion that Yang lacks the
subject matter claimed and the Examiner’s position stands uncontroverted.3

3 “Filing a Board appeal does not, unto itself, entitle an appellant to de novo
review of all aspects of a rejection.” See Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (citations omitted). “[T]he Board will not,
as a general matter, unilaterally review those uncontested aspects of the
rejection.” Id. at 1075–76 (citations omitted). Arguments must address the
Examiner’s action. 37 C.F.R. § 41.37(c)(1)(iv) (“The arguments shall
explain why the examiner erred as to each ground of rejection contested by
appellant”). The Board will not advocate for Appellants by scouring the
record to see if the Board can identify some flaw in the Examiner’s findings
of fact, articulated reasoning, or legal conclusions. See, e.g., Halliburton
Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008)
(“A skeletal ‘argument’, really nothing more than an assertion, does not
preserve a claim…. Judges are not like pigs, hunting for truffles buried in
briefs.”) (citation omitted).

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Aoyagi
Appellant argues Aoyagi is nonanalogous art, and this argument is
relevant to each of the rejections before us. Appellant and the Examiner
agree on the principles associated with the analogous art inquiry but reach
different conclusions. Appeal Br. 7–9; Ans. 10. The Examiner finds Aoyagi
to be in Appellant’s field of endeavor which the Examiner characterizes as
“liquid displays.” Ans. 10. Appellant contends that Aoyagi is not in the same
field of endeavor as Appellant’s invention because it differs in its intended
function, namely looking through it like a window as opposed to looking at
it, and a goal of Appellant’s device is to provide fluidic motion. Appeal Br.
7–8. Appellant argues these differences demonstrate Aoyagi is outside
Appellant’s field of endeavor based on the premise that “the field of
endeavor is determined by the expressed purpose of a device.” Appeal Br. 8.
We disagree with this premise.
Rather, the field of endeavor prong of the analogous art inquiry is
determined in light of the structure and function of the subject matter
disclosed. In re Ellis, 476 F.2d 1370, 1372 (CCPA 1973) accord In re Bigio,
381 F.3d 1320, 1326 (Fed. Cir. 2004). The function relates to how a device
operates or works and is not necessarily confined by the intended use of the
device. The MPEP has long contained examples on this very point:
a tea mixer and a concrete mixer may both be regarded as relating
to the mixing art, this being the necessary function of each.
Similarly a brick-cutting machine and a biscuit cutting machine
may be considered as having the same necessary function.
MPEP § 904.01(c).
Under the proper inquiry, the similarities in structure and function
between Appellant’s device and that of Aoyagi far outweigh the differences.
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Both devices employ pumps4 to direct one or more fluids5 over or between
one or more vertical, transparent or semi-transparent plates6 and to or from a
reservoir or storage cylinder.7 The case for analogy is especially strong with
respect to Appellant’s embodiment depicted in Figure 4 wherein, as with
Aoyagi’s device, multiple plates sandwich multiple fluids. As discussed
above, claim 1 is generic to Appellant’s various embodiments including that
depicted in Figure 4, which further strengthens the case for Aoyagi being
analogous to the claimed invention under § 103.
The differences pointed out by Appellant mainly relate to intent rather
than structure or function. In any case, Appellant’s characterization of those
differences is inaccurate. Although Aoyagi’s main purpose may be for a
window, to replace blinds or curtains (Appeal Br. 7), Aoyagi also
contemplates use for advertising purposes and displaying “patterns and so
on.” Aoyagi col. 3, ll. 12–13. Such purposes are clearly intended to be
“looked at” and not merely through as Appellant asserts. See Appeal Br. 7.
Indeed, if Aoyagi’s only goal was transparency or opacity there would not
appear to be a need to provide up to four different colored liquids. Aoyagi
col. 4, ll. 7–9. Further, although “motion” itself in Aoyagi may not
necessarily be intended to create visual interest (Appeal Br. 7; Reply Br. 5)

4 Reference numeral 380 in Appellant’s Specification (Spec. pp. 4–5);
reference numeral 9 in Aoyagi (Aoyagi col. 2, ll. 14–16).
5 Reference numeral 100 in Appellant’s Specification (Spec. pp. 4–5);
reference numerals 2, 3 in Aoyagi (Aoyagi col. 2, ll. 14–16).
6 Reference numerals 120, 310 in Appellant’s Specification; reference
numeral 1 in Aoyagi. (Aoyagi col. 2, ll. 6–7).
7 Reference numerals 140 in Appellant’s Specification; reference numeral 7
in Aoyagi. (Aoyagi col. 2, ll. 14–16).
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this does not negate the fact that Aoyagi’s device functions by moving a
fluid from a reservoir cylinder 7 to and from the gap t between panels 1.
For the foregoing reasons, we agree with the Examiner that Aoyagi,
being sufficiently similar in structure and function as compared to the
claimed invention, falls within the same field of endeavor as Appellant’s
claimed subject matter.
With respect to the particular problem prong of the analogous arts test,
the Examiner correctly characterizes a problem faced by Appellant as
preventing, or mitigating the effects of, freezing in liquid displays. Ans. 10
(quoting Spec. 2 (“In cold environments, water can be subject to freezing
which, beyond stopping the flow of fluid, can damage the display through
expansion as ice forms.”)). The fact that there may be multiple problems
Appellant wanted to solve (Appeal Br. 8–9; Reply Br. 7) does not negate the
fact that freezing was a particular problem identified by Appellant.
Considering the problem or problems Appellant’s invention attempts to
solve is necessary to determine the appropriate scope of prior art that should
be considered in an obviousness analysis (In re Clay, 966 F.2d 656, 658–59
(Fed. Cir. 1992)) and therefore does not amount to improper reliance on
hindsight. See Reply Br. 6–7; Ans. 10.
Aoyagi’s device, in addition to employing similar structures and
functions as discussed above, is intended to be used as a window—a
structure notoriously well-known for being exposed to environmental
elements and weather including freezing temperatures. Because Aoyagi’s
device employs fluids sandwiched between transparent plates and would be
expected to need to function in freezing temperatures, the subject matter
disclosed therein would have logically commended itself to an inventor’s
attention when considering Appellant’s problem reproduced above.
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Accordingly, we also agree with the Examiner that Aoyagi would
have been reasonably pertinent to the problem faced by Appellant.
Appellant next argues the Examiner improperly relied on hindsight by
proposing to incorporate Aoyagi’s silicone oil into Yang’s frame because
Yang would not benefit from any of the touted advantages of silicone oil
stated by Aoyagi and reproduced by the Examiner as motivating the
proposed combination, “very low surface tension, heat-resistance, cold-
resistance, electrical insulation resistance and so on.” Final act. 4 (quoting
from Aoyagi col. 3 ll. 57–60). Appellant’s point is well-taken with regard to
some of the listed benefits of silicone oil, namely low surface tension and
electrical insulation resistance. It is not clear what benefits these properties
would provide in Yang. The Examiner does not explain why low surface
tension or electrical insulation would make any difference in Yang. Yang’s
device is intended to be in an area visible to a person. Thus, there does exist
the possibility that one might want to place Yang’s device outdoors where it
might be exposed to hot or cold temperatures sufficient to evaporate or
freeze some of Yang’s fluid such that it would negatively impact Yang’s
device. Freezing or evaporation could alter the internal pressure on frame
causing damage and inhibit the desirable circulation of Yang’s fluid and
esthetic appeal. Accordingly, we ultimately agree that, in light of Aoyagi
disclosure, it would have been obvious to one skilled in the art to use
silicone oil in Yang’s device to provide a fluid suitable for excessively hot or
cold temperatures. As Aoyagi discloses this benefit, nothing need be gleaned
from Appellant’s disclosure to arrive at that conclusion. The fact that
Appellant may have discovered other benefits to silicone oil does not
undermine this conclusion. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007) (“[N]either the particular motivation nor the avowed purpose of the
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[Appellants] controls” in an obviousness analysis.) “[A]ny need or problem
known in the field of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in the manner
claimed” KSR, 550 U.S. at 420.
Appellant next argues Aoyagi teaches away from the subject matter of
claim 15 which recites that the “sensory interest is a sound” because Aoyagi
touts the sound-insulating properties of Aoyagi’s panel. Appeal Br. 10
(citing Aoyagi col. 2, l. 32). This argument is only relevant to the rejections
of claim 15 predicated on Kloppenberg and Pfeuffer as there is no rejection
of claim 15 based on Yang. It is well-settled that teaching away requires
some type of criticism or discrediting of the solution claimed. In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). However, in considering teaching
away the references must be considered as a whole. W.L. Gore & Assoc.,
Inc. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983). When
considering the entirety of the cited prior art as a whole, it does not seem
reasonable to conclude that the only thing that would have been obvious to
one skilled in the art, on reading the cited passage in Aoyagi related to the
benefits of sound insulation provided by two panels sandwiching a fluid,
would have been to incorporate all of that structure into the Kloppenberg
and Pfeuffer devices in order to silence the notoriously pleasant sounds of
falling water. One skilled in the art is neither stupid (In re Sovish, 769 F.2d
738, 743 (Fed. Cir. 1985)) nor an automaton (KSR, 550 U.S. at 421). One
skilled in the art would reasonably understand that Aoyagi’s teaching of
silicone oil use could be implemented in Kloppenberg and Pfeuffer without
also implementing the sound insulating panel arrangement of Aoyagi. Ans.
11. “It is well-established that a determination of obviousness based on
teachings from multiple references does not require an actual, physical
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substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
2012).
Appellant’s final paragraph in the arguments concerning Aoyagi
asserts that there is no interaction between Aoyagi’s fluid and an effect
surface and no reasonable expectation of providing one by incorporating
Aoyagi’s silicone oil. Appeal Br. 10. We fail to see how this argument
relates to the Examiner’s rejections, all of which are based on the effect
surface being present in each of the cited primary references of Yang,
Kloppenberg, and Pfeuffer. Aoyagi was cited by the Examiner for
demonstrating silicone oil was known in the art and Aoyagi need not also
teach what is already taught by each of Yang, Kloppenberg, and Pfeuffer in
order to support an obviousness rejection based on the respective
combination of those references with Aoyagi. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted).

Kloppenberg
Appellant presents one additional argument specific to Kloppenberg:
“By replacing the water with silicone oil, as in the present invention,
[Kloppenberg’s] microorganism killing [ultraviolet lights] have no
function.” Appeal Br. 10; Reply Br 7. The Examiner counters that the
expressed goal of inhibiting microorganism growth in Kloppenberg “would
seem to be an additional motivation to make [the proposed] substitution.”
Ans. 11. The Examiner has the better position in this instance.
It is true that the Examiner’s proposed modification might obviate the
ultraviolet light which Kloppenberg apparently regarded as his main
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contribution to the art along with such advantages as it might provide.
However, this, without more, does not necessarily undermine a conclusion
of obviousness. In re Umbarger, 407 F.2d 425, 430 (CCPA 1969). Just
because a prior art product functions satisfactorily does not mean that a
skilled artisan would not try to improve it. See KSR, 550 U.S. at 417
(explaining that if a technique has been used to improve one device and a
person of ordinary skill in the art would recognize that it would improve a
similar device in the same way, using the technique is obvious unless its
actual application is beyond his or her skill). Even if Kloppenberg’s UV
lights become unnecessary, there is certainly nothing wrong with a proposed
combination that alters known subject matter by substituting one known
element for another known in the field to yield a predictable result. See id.
Obviousness “does not require that the motivation be the best option, only
that it be a suitable option from which the prior art did not teach away.” PAR
Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1197–98 (Fed. Cir. 2014).

Pfeuffer
Appellant presents one additional argument specifically related to
Pfeuffer:
While it is true that silicone oil has low evaporation as is
beneficial in a water feature like the one disclosed by Pfeuffer
and the ornamental liquid display of the present invention, the
Aoyagi reference makes no mention of low evaporation[, a focal
problem Pfeuffer sought to address.]
Appeal Br. 11; Pfeuffer col. 2, ll. 21–13; col. 2, l. 74–col. 3, l. 2.
As discussed above, Pfeuffer’s stated objectives need not necessarily
be the motivating factor in a proposed combination of prior art teachings.
Demonstrating that Pfeuffer was more concerned with evaporation and not
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freezing does not, without more, undermine a rejection predicated at least in
part on using silicone oil to discourage freezing. Aoyagi need not state the
same problem of evaporation to support the proposed combination. Appeal
Br. 11. In any case, the fact that Aoyagi’s device is sealed does not
necessarily mean undesirable gas pockets could not form as a result of
evaporation. Id. Furthermore, Aoyagi’s disclosure of “heat-resistance” and
that the oil “does not change in the range of –40oC to +200oC” would have at
least suggested to one skilled in the art seeking a solution the evaporation
problem as in Pfeuffer, that silicone oil might be a viable alternative.
Absolute predictability that the substitution will be successful is not
required, all that is required is a reasonable expectation of success. See In re
O’Farrell, 853 F.2d 894, 903–04 (Fed. Cir. 1988). Based on the teachings of
Aoyagi the skilled artisan would have had a reasonable expectation that
using silicone oil would have mitigated any problems that may have arose
associated with either freezing or evaporation in fountains of the type
disclosed in Pfeuffer.

CONCLUSION
The Examiner’s indefiniteness rejection is REVERSED.
The Examiner’s prior art rejections are AFFIRMED.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
17–19 112(b) Indefiniteness 17–19
1, 2, 4, 9–14 103 Yang, Aoyagi 1, 2, 4, 9–14
3 103 Yang, Aoyagi,
Kaviani
3
5 103 Yang, Aoyagi,
Pedersen
5
6 103 Yang, Aoyagi,
Hayden
6
8 103 Yang, Aoyagi,
Yang ’495
8
1, 2, 6, 9–
11, 13–15
103 Kloppenberg,
Aoyagi
1, 2, 6, 9–
11, 13–15

3 103 Kloppenberg,
Aoyagi, Kaviani
3
8 103 Kloppenberg,
Aoyagi, Yang ’495
8
20 103 Kloppenberg,
Aoyagi, Focaccia
20
1, 2, 9–11,
13–16
103 Pfeuffer, Aoyagi 1, 2, 9–11,
13–16

3 103 Pfeuffer, Aoyagi,
Kaviani
3
8 103 Pfeuffer, Aoyagi,
Yang ’495
8
Overall
Outcome
1–6, 8–16,
20
17–19
RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART