N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

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IN RE JASON ONTJES AND JOEL ALDERSON

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2014

- 1157

______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board

, in Serial No. 12/757,643.

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Decided: September 25, 2014

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J OHN M. C OLLINS , Hovey Williams LLP, of Overland Park, Kansas, for appellants.

N ATHAN K. K ELLEY , Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Alexa ndria, Virginia, for appellee. With him on the brief were M ONICA B. L ATEEF and F ARHEENA Y. R A SHEED , Associate Solicitors.

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Before D YK , T ARANTO , and C HEN , Circuit Judges.

P ER C URIAM

. On April 9, 2010, Jason Ontjes and Joel Alde rson filed an application for a utility patent entitled “Decorative Propane Tank Assembly.” U.S. Patent Application No.IN RE ONTJES 2

12/757,643

. The application describes a nd claims a si mple invention: a cover assembly , for a propane tank with certain structural features, designed to resemble a foo tball helmet or other sports

- related object . The application disc usses the use of the invention in tailgating cookouts in parking lots at sports stadium s.
The patent examiner rejected all claims that are at i ssue here as obvious over the prior art. T he Patent Trial and Appeal Board affirmed the examiner’s rejections for obvi ousness , relying on four prior

- art ref erences : (1) U.S. Patent No. 4,473,171 (Nunlist ); (2) U.S. Patent No. 4,765,458 (Flanigen); (3) U.S. Patent Application No. US 2009/0057325 A1 (Tullio ); and (4 ) U.S. Patent No. US D577,791 S (Kalb ). Ex Parte Jason Ontjes and Joel Al derson , No. 2011

- 010529, 2013 WL 4692713 ( PTAB Aug. 29, 2013) ( Board Decision ). Ontjes and Alderson appeal under 35 U.S.C. § 141. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

B ACKGROUND
Claim 1 is representative

. It reads:
A sports

- related cover assembly for a propane tank, said tank including an upper wall and a valve extending upwardly from the upper wall, said cover assembly comprising a decorative body having wall structure configured to be placed about a propane tank a nd presenting an upper and a lower margin, said wall structure including a substantially rigid outer wall shaped and co nfigured to present a three

- dimensional likeness of a sports

- related item, said valve extending above said cover assembly upper margin, said decorative body formed of metal, permanently secured to said tank, presenting a concavo

- convex wall segment, and having a portion thereof spaced at least one

half inch from the tank.IN RE : ONTJES 3

J.A. 448

. Ontjes and Alderson have not shown how the required analysis produces a different result for any other claim

— either independent c laim 15 (a “tank assembly”) or the dependent claims

. Figure 6 depicts one embodiment:

Each of the four prior

- art references relied on by the Board describe s either a contain er or a sports -themed ob ject related to containers. Specifically, Nunlist describes a jacketed pressurize d tank capable of holding liquid chemi cals

, s ee J.A. 510 ( left

- hand figure below ) , and Flanigen de scribes an asbestos

- free gas

- storage vessel

, s ee J.A. 502 (r ight

- hand figure below)

.IN RE ONTJES 4

Tullio describes a beer koozie decorated to resemble a miniature football hel met
, s ee J.A. 518 (left

- hand figure below) , and Kalb describes a tank cover with the orn amen tal design of a foot ball

, s ee J.A. 508 (right

- hand figure below).IN RE : ONTJES 5

D ISCUSSION
A claimed invention is un patentable if , at the time of invention, it would have been obvious to one of ordinary skill in the relevant art. 35 U.S.C. § 103. Obviousness presents a question of law based on underlying findings of fact about, e.g. , the scope and content of the prior art and the differences between the prior art and the claims at issue. Graham v. John Deere Co. of Kansas City , 383 U.S. 1, 17 (1966)

. We review the Board’s legal conclusion of obviousness de novo and its underlying findings of fact for substantial evidence. In re Gartside , 203 F.3d 1305, 1316 (Fed. Cir. 2000)

. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id . at 1312 (citation s and inte rnal quotation marks omitted).

A

The Board did not err in considering Nunlist, Flani gen, Tullio, and Kalb in the obviousness analysis . It is sufficient for consideration of a reference that it is “ re asonably pertinent to the particular problem with which the inventor is involved.” In re Klein , 647 F.3d 1343, 1348 (Fed. Cir. 2011) (citation and internal quotation marks omitted). The standard is met if the reference “is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.” Id. (citation and internal qu otation marks omitted). We review the Board’s analogous

art determination for substantial evidence. Id. at 1 347 (citation omitted)

. According to Ontjes and Alderson ’s patent application, their invention is meant to s olve the problem of “unattra ctive and innocuous propane tanks” by “decorat[ing them] in a manner consistent with a tailgate party scheme,

. . . particularly [by] giv[ing] the appearance or likeness of a sports

- related item.” J.A. 16

. Nunlist, Flanigen , Tullio, and Kalb are all reasonably pertinent to that particularIN RE ONTJES 6

problem

— Nunlist and Flanigen because they teach how to design a vessel for conta ining fluids such as propane

, Tullio and Kalb because they teach how to make contai ners more pleasing to the eye t hrough sport s-themed decoration. The Board could find that those references would commend themselves to the attention of a n inve ntor set on encasing a propane tank in a structure shaped like a football helmet

. B
The Board committed no error in reaching its obv iousness conclusion in light of the prior art

. As an initial matter, if one puts aside the purely ornamental features here, Nunlist alon e disclose s nearly all of Ontjes and Al derson’s claimed elements. For example, O ntjes and Al derson’s propane tank consists of an “upper wall [,] .

. . a valve extending upwardly from the upper wall [, and ] . . . a substantially rigid outer wall. ” J.A. 22. The Board could readily find that Nunlist teaches “a valve extending upwardly from [an] upper wall” because it discloses a valve that extends from the top of a steel wall. J.A. 513 ( Nunlist, col. 2, lines 44

– 58 ) ; see also Board Decision at *2. Moreover, as t he Board f ou nd, Nunlist’s “outer jacket wall ” teaches Ontjes and Alderson’s claimed outer wall

. Board Decision at *2.
Ontjes and A l derson point out that none of the four prior

- art references relied on by the Board specifically describe pro pane tanks. Appellants ’ Br. a t 17. But “[a] person of ordinary skill is also a person of ordinary cre ativity, not an automaton.” KSR Int ’ l Co. v. Teleflex Inc.

, 550 U.S. 398, 421 (2007). G iven the structural similar ities between a propane tank and the tanks taught by Nunlist and Flanigen

, designing a propane tank based on the references at issue here would have been obvious

. The Board found that certain features of the claimed invention were “ ‘purely ornamental ’ ”— “only providing ornamentation, and no mechanical function.” BoardIN RE : ONTJES 7

Decision at *4. It concluded that those features “cannot be relied upon for patentability” in a utility patent and that , even if the features are considered, the claims still must be inv alidated for obviousness. Id. at *4–5

. Without addressing the first conclusion, we affirm because we agree with the second conclusion

. Even if purely ornamental features should be given patentable weight, Tullio and Kalb disclose all the orn amen tal features— “sports

- related,” “decorative body,” “configured to present a three

- dimensional likeness of a sports

- related item” (J.A. 448 )— that Ontjes and Alderson claim. Tullio , for example, describes a decora tive, three

dimensional can -holder that looks lik e a football helmet. K alb describes a football- shaped tank cover

. Ontjes and Alderson ’s invention is more of the same: a sports -themed cover added to a propane tank. “Such a combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR

, 550 U.S. at 401.

C ONCLUSION For the foregoing reasons, the decision of the Board is affirmed.

No costs.

AFFIRMED