This appeal is from the decision of the Board of Appeals of the Patent and Trademark Office affirming the examiner's rejection of claims 5 and 6 of application serial No. 314,180, filed Dec. 11, 1972, for "Portable Moisture Meter." We affirm.
Claim 5 defines a portable electrical instrument for measuring the amount of moisture in the soil by detecting the conductivity of the soil. The smaller the conductivity, the drier the soil. Figure 1 of the drawings illustrates the device.
Dependent claim 6 reads:
The claims were rejected under 35 U.S.C. § 103 as unpatentable over the Smith patent, No. 2,437,134, issued Mar. 2, 1948, and the Sherrard patent, No. 2,328,853, issued Sept. 7, 1943.
As stated by the board, the examiner's position was that Smith discloses a moisture meter which operates on basically the same principle and in the same manner as appellant's device, measuring moisture content by the conductivity between two electrodes inserted into the soil being tested; further, that in view of the Sherrard teaching of a battery having a spring-loaded contact mounted in a tubular casing used to measure the change in conductivity between two electrodes inserted into liquids (e. g. antifreeze liquids), it would have been obvious to one skilled in the art to utilize such a battery and spring-loaded contact in the Smith device. The board also noted that use of a spring-loaded contact in the manner claimed would be obvious because this was "notoriously old with the common flashlight," and that the particular placement provided no novel or unexpected result. In response to appellant, the board said that deletion of elements, such as the switch of Smith or Sherrard, thereby deleting their function, was a matter of simplification and an obvious expedient. With respect to the limitation in claim 6 of the "metallic wrapping," the board found no novel or unexpected result over the metallic connections used in the references.
With respect to claim 5, appellant contends that Smith does not show: (1) a battery mounted in axial alignment with the rod and having an electrode at one end contacting the rod; (2) a spring-loaded contact engaging the battery and urging the battery electrode against the rod; and (3) an electrical circuit connecting the meter to the spring-loaded contact and to the electrically conductive metal tube. Further, appellant argues that Sherrard does not show a spring-loaded contact, but moves his entire battery to effectuate electrical contact.
We agree with the board that, in view of Sherrard, it would have been obvious
We also agree that the particular placement of the contact provides no novel or unexpected result. The manner in which electrical contact is made for Smith's battery would be an obvious matter of design choice within the skill of the art. See Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); In re Gazda, 219 F.2d 449, 42 CCPA 770 (1955). As the board pointed out, use of a spring-loaded contact in the manner claimed is well known with the common flashlight. see In re Howard, 394 F.2d 869, 55 CCPA 1121 (1968).
We further agree with the board that deletion of the switch member (and other elements) found in Smith and Sherrard, thereby deleting their function, was an obvious expedient. In re Keegan, 51 CCPA 1344, 331 F.2d 315, 141 USPQ 512 (1964). Appellant contends that the electrical circuit of his device is not completed until the electrodes are inserted into the soil, so that a switch is not needed. However, the circuits in both Smith and Sherrard are also incomplete until the electrodes are inserted into the material to be tested.
We are persuaded by the Solicitor's argument that the Smith drawing would lead one to believe that the battery is in axial alignment with the rod and that this is well known with the common flashlight, with its axially contained battery. We are further persuaded by the Solicitor's argument that the electrical circuit connecting the meter to the spring-loaded contact and to the metal tube is similar to that disclosed by Smith, whose specification teaches:
With respect to claim 6, we agree with the board that the limitation of the "metallic wrapping," which is really a lining of the tube, presents no novel or unexpected result over the metallic connections used in the references. Use of such a means of electrical connection in lieu of those used in the references solves no stated problem and would be an obvious matter of design choice within the skill of the art. In re Launder, 222 F.2d 371, 42 CCPA 886 (1955); Flour City Architectural Metals v. Alpana Aluminum Products, Inc., 454 F.2d 98 (8th Cir. 1972); National Connector Corp. v. Malco Manufacturing Co., 392 F.2d 766 (8th Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968). See Graham v. John Deere Co., supra.
Finally, we cannot agree with appellant that the collective teachings of Smith and Sherrard may not properly be considered. The devices of the references are, like appellant's device, used to measure conductivity between two electrodes inserted into the material being tested. A person of ordinary skill in the conductivity-measuring device field would be expected to be familiar with the references.