Ex Parte 6341981 et al

Patent Trial and Appeal Board

Apr 25, 2013

90011275 (P.T.A.B. Apr. 25, 2013)

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.
90/011,275 01/12/2011 6341981 40041-702 9577
47604 7590 04/25/2013
DLA PIPER LLP US
P. O. BOX 2758
RESTON, VA 20195
EXAMINER
WHITTINGTON, KENNETH
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/25/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PROTECTCONNECT, INC.,
Appellant and Patent Owner
____________________

Appeal 2012-012340
Reexamination Control No. 90/011,275
Patent 6,341,981 B1
Technology Center 3900
____________________

Before HOWARD B. BLANKENSHIP, JUSTIN T. ARBES, and
THOMAS L. GIANNETTI, Administrative Patent Judges.

ARBES, Administrative Patent Judge.

DECISION ON APPEAL
ProtectConnect, Inc., the owner of Patent 6,341,981 B1, the patent
under reexamination (hereinafter the “‘981 patent”), appeals under 35 U.S.C.
§§ 134(b) and 306 (2002) from a final rejection of claims 34 and 35. An
oral hearing was conducted on January 9, 2013, and a transcript of the
hearing (“Transcript”) was made of record on February 6, 2013. We have
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jurisdiction under 35 U.S.C. §§ 134(b) and 306 (2002).
1

We affirm.

STATEMENT OF THE CASE
This reexamination proceeding arose from a request for ex parte
reexamination of claims 34 and 35 of the ‘981 patent filed by Leviton
Manufacturing Co., Inc. on October 8, 2010. A corrected request
subsequently was filed on January 12, 2011.
The ‘981 patent issued on January 29, 2002 based on
Application 09/553,425, filed April 19, 2000. The ‘981 patent claims
priority to Provisional Application 60/174,521, filed January 5, 2000. The
‘981 patent relates to an “electrical outlet and switch system [that] allows
snap-in installation and snap-out removal of outlet and switch modules
without exposure to high-voltage conductors” (Abstract).
Claims 34 and 35 have not been amended from the original patent.
Claims 1-33 are not subject to reexamination. Claims 34 and 35 recite:
34. An electrical wiring assembly comprising:
an electrical box configured to house a power cable;
a wiring panel adapted to install within said box and to
electrically connect to said power cable;
a keyed panel fixture located on said wiring panel;

1
Our decision will make reference to Appellant’s Appeal Brief (“App. Br.,”
filed May 11, 2012) and Reply Brief (“Reply Br.,” filed August 10, 2012),
and the Examiner’s Answer (“Ans.,” mailed June 15, 2012) and Final
Rejection (“Final Rej.,” mailed December 14, 2011).
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a module adapted to electrically connect to said wiring
panel so as to transfer power from said power cable; and
a keyed module fixture located on said module,
said keyed panel fixture and said keyed module
configured to engage so as to removably attach said module to
said wiring panel only in a proper orientation.
35. The wiring assembly of claim 34 further comprising a
ground bar configured to engage a ground connector in said
proper orientation.
Claims App’x, App. Br. 17.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
U.S. Patent No. 3,609,647, issued Sept. 28, 1971
(“Castellano”);
Great Britain Patent No. 1,420,748, published
Jan. 14, 1976 (“Smith”);
U.S. Patent No. 2,433,917, issued Jan. 6, 1948
(“McCartney”); and
U.S. Patent No. 5,503,565, issued Apr. 2, 1996
(“McCoy”).
The Examiner (1) rejected claims 34 and 35 under 35 U.S.C. § 102(b)
as being anticipated by Castellano; (2) rejected claims 34 and 35 under 35
U.S.C. § 102(b) as being anticipated by Smith; and (3) rejected claim 34
under 35 U.S.C. § 103(a) as being unpatentable over McCartney in view of
McCoy. Ans. 2.

ISSUES
The principal issues in this appeal are: (1) did the Examiner err in
interpreting the terms “module adapted to electrically connect to said wiring
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panel” and “proper orientation,” and (2) did the Examiner incorrectly
determine that, when properly interpreted, claims 34 and 35 are anticipated
by each of Castellano and Smith, and claim 34 is unpatentable over
McCartney in view of McCoy?

PRINCIPLES OF LAW
Claim Interpretation
“During reexamination, as with original examination, the PTO must
give claims their broadest reasonable construction consistent with the
specification. . . . Therefore, we look to the specification to see if it provides
a definition for claim terms, but otherwise apply a broad interpretation.” In
re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
We must be careful not to read a particular embodiment appearing in the
written description into the claim if the claim language is broader than the
embodiment. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(“[L]imitations are not to be read into the claims from the specification.”).
“Although an inventor is indeed free to define the specific terms used
to describe his or her invention, this must be done with reasonable clarity,
deliberateness, and precision. ‘Where an inventor chooses to be his own
lexicographer and to give terms uncommon meanings, he must set out his
uncommon definition in some manner within the patent disclosure’ so as to
give one of ordinary skill in the art notice of the change.” In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994) (citation omitted).

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Anticipation
“Anticipation requires that every limitation of the claim in issue be
disclosed, either expressly or under principles of inherency, in a single prior
art reference.” Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868
F.2d 1251, 1255-56 (Fed. Cir. 1989).

Obviousness
“Section 103(a) forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 405
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations, including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art,
(3) the level of skill in the art, and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966).

ANALYSIS
I. Claim Interpretation
We begin by interpreting the terms “module adapted to electrically
connect to said wiring panel” and “proper orientation” in claim 34, as
Appellant argues that the Examiner erred in interpreting each term. See
App. Br. 6-9, 11-12, 14; Reply Br. 3-8.

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A. “Module Adapted to Electrically Connect to Said Wiring Panel”
Claim 34 recites a “module adapted to electrically connect to said
wiring panel so as to transfer power from said power cable” and a “keyed
module fixture located on said module.” Appellant argues that “module
adapted to electrically connect to said wiring panel” should be interpreted as
follows:
This means a direct electrical connection using electrical
contacts on the module connecting to another element. It is the
module, and not the separately claimed keyed module fixture,
that is adapted to electrically connect to the wiring panel.
Being adapted to connect electrically is not equivalent to being
adapted to complete a circuit. Rather, being adapted to connect
electrically means being adapted to form an electrical
connection which may or may not be used within a circuit.
App. Br. 5-6. Appellant’s interpretation imposes two conditions on the
claim: (1) there must be electrical “contacts” on the module that make a
“direct electrical connection” to the wiring panel, and (2) the module by
itself must be what is adapted to electrically connect to the wiring panel.
The Examiner concludes that Appellant’s interpretation is reasonable,
but not the broadest reasonable interpretation of the claim. Ans. 3.
According to the Examiner, two alternative interpretations are reasonable as
well. Id. at 3-8. First, the Examiner interprets the phrase to encompass the
situation where the “module is adapted to electrical[ly] connect, via the
keyed module, to said wiring panel.” Id. at 6-7. Under this interpretation,
the keyed module fixture can function as an intermediary that “adapts” the
module to electrically connect to the wiring panel by attaching the module to
the wiring panel. Second, the Examiner interprets the phrase to encompass
the situation where “electrical components within the module” provide the
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electrical connection to the wiring panel. Id. at 8. Neither of the Examiner’s
interpretations limits the claim to a direct electrical connection using
electrical contacts. Id. at 4-8.
Applying the broadest reasonable interpretation of the claim, as we
must, see ICON Health, 496 F.3d at 1379, we conclude that neither of
Appellant’s proposed conditions applies, which is essentially the Examiner’s
first interpretation. Specifically, “module adapted to electrically connect to
said wiring panel” (1) is not limited to electrical contacts that make a direct
electrical connection with the wiring panel, and (2) does not preclude the
involvement of an intermediary structure, such as the keyed module fixture,
in making an electrical connection to the wiring panel. We interpret the
claim language as simply requiring that the module be configured to allow
for the transfer of electric power between the module and wiring panel.
First, we see nothing in the language of the claim itself or the
Specification of the ‘981 patent that would limit “module adapted to
electrically connect to said wiring panel” to electrical contacts making a
direct electrical connection. While certain embodiments described in the
‘981 patent use electrical contacts, claim 34 does not specify how an
electrical connection is made and does not use the term “contact” to describe
what makes the electrical connection.
2
See Resonate Inc. v. Alteon
Websystems, Inc., 338 F.3d 1360, 1367 (Fed. Cir. 2003) (“limitations may

2
Notably, other claims not subject to reexamination use the term “contact”
in describing what makes an electrical connection with another structure.
Claim 8, for example, recites a “spring contact . . . electrically connecting to
Footnote continued on next page.
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not be read into a claim from a preferred embodiment when the claim
language is broader than that embodiment”). The claim simply requires that
the module be “adapted” to electrically connect to the wiring panel so as to
transfer power. Further, the Specification uses “electrically connect”
broadly, without requiring electrical contacts in all circumstances. For
example, the Specification describes outlet module 800 and wiring panel 700
as “electrically connect[ed]” even though snap-in structures are used to
physically connect the two structures. See ‘981 patent, col. 10, ll. 16-21;
Fig. 4C; see also claim 23 (“snapin means for removably attaching and
electrically connecting said module means to said wiring panel means with
tactile feedback”). Appellant also argues that the “only” thing that can cause
something to be electrically connected to something else is an electrically
conductive contact, but does not provide factual support for the argument or
explain why no other structure is capable of making an electrical connection.
See App. Br. 5-7, 9. We therefore do not read the claim language as
requiring electrical contacts making a direct electrical connection.
Second, we do not interpret claim 34 as precluding the involvement of
an intermediary structure, such as the keyed module fixture, in making the
electrical connection to the wiring panel. Appellant points out that the
module and keyed module fixture are separately claimed structures and that
it is the module, not the keyed module fixture, that is “adapted to electrically

said contact surface,” and claim 27 recites “first contacts . . . configured to
electrically connect with a replaceable module.”
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connect to said wiring panel.” Id. at 4-6. We agree with Appellant that the
structures are separately claimed, as the claimed assembly comprises a
module and a “keyed module fixture located on said module.” That does not
mean, however, that another structure cannot be involved in adapting the
module to electrically connect to the wiring panel. Claim 34 does not
specify whether the electrical connection is “direct” or “indirect,” and does
not recite that the module itself is “physically connected” to or “in physical
contact with” the wiring panel. The Specification also contemplates the
involvement of an intermediary structure in making an electrical connection.
See, e.g., ‘981 patent, col. 4, ll. 18-20 (“The panel fixture provides an
electrical connection to the cable connector via a buss portion of the wiring
panel.”) (emphasis added); col. 17, ll. 44-48 (“first top buss 951 electrically
connects the first top module contact 956 and the top pole 954”). Thus, the
claimed module may be adapted to electrically connect to the wiring panel
via another structure, such as the keyed module fixture.
We interpret “module adapted to electrically connect to said wiring
panel” to encompass a module configured to allow for the transfer of electric
power between the module and wiring panel.

B. “Proper Orientation”
Claim 34 recites that “said keyed panel fixture and said keyed module
[are] configured to engage so as to removably attach said module to said
wiring panel only in a proper orientation.” Appellant contends that there can
be only one “proper orientation” for the module to attach to the wiring panel,
while the Examiner interprets the phrase to permit more than one “proper
orientation.” See App. Br. 4-5, 11-12, 14; Reply Br. 2-3, 11-12; Ans. 19-20.
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As support for its proposed interpretation, Appellant cites the
Specification of the ‘981 patent, which describes outlet module 800 and
wiring panel 700 being keyed to prevent installation in an “incorrect, i.e.
upside-down orientation.” ‘981 patent, col. 15, ll. 15-18, Fig. 8B; see App.
Br. 4-5. According to Appellant, without the keyed features, outlet module
800 could be installed in two possible orientations (upside-down and right-
side-up), but with the keyed features, only one orientation is possible. App.
Br. 5. The portion of the Specification relied upon by Appellant, however,
merely describes an exemplary embodiment. See ‘981 patent, col. 15, ll. 13-
33; col. 25, ll. 37-41. Further, while the Specification describes an upside-
down orientation as “incorrect” in one embodiment, it does not explicitly
preclude more than one orientation from being correct. Thus, we do not
interpret claim 34 as limited to a single “proper orientation.”
3

II. Rejections
A. Anticipation Rejection Based on Castellano (Claims 34 and 35)
Appellant’s arguments with respect to Castellano are premised on its
proposed interpretation of “module adapted to electrically connect to said
wiring panel” in claim 34. Appellant argues that the claim requires a keyed
module fixture separate from electrical contacts that electrically connect a
module to a wiring panel. App. Br. 9-10; Reply Br. 8-9. In Castellano,

3
Appellant also argued during the hearing that “proper orientation” means
the one and only orientation where power can be delivered “safely.” Tr. 7:5-
8:21, 10:9-21. We need not address this additional argument, however, as it
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however, conductor prongs 36a and 36b act as both according to Appellant,
i.e., they provide keying and are electrical contacts that electrically connect
plug receptacle 36 to receptacle 30. Id. Appellant further contends that
ground prong 36b is part of what electrically connects to a wiring panel, not
part of a keyed module fixture, because it makes a circuit with prongs 36a
and “power cannot be transferred without it.” Reply Br. 9.
In light of the claim interpretation discussed above, we are not
persuaded by Appellant’s arguments. Figure 1 of Castellano shown below
depicts a plug receptacle 36 having a pair of conductor prongs 36a and
ground prong 36b, which engage with corresponding apertures 58 and 60 in
receptacle 30:

relates only to the Examiner’s rejection based on Figures 1 and 3 of Smith,
which we do not reach for the reasons explained below.
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Power is transferred from a power cable in outlet box 10 to prongs 36a
inserted in apertures 58 and ultimately to an electrical device plugged in to
plug receptacle 36. Castellano, col. 1, ll. 49-74; col. 2, ll. 19-25. As the
Examiner found, plug receptacle 36 is adapted to electrically connect to
cover plate 50 of receptacle 30, via prongs 36a and 36b, so as to transfer
power from a power cable. Ans. 13-16; Final Rej. 4-5. While an electrical
connection between plug receptacle 36 and receptacle 30 is made, and power
is transferred, via prongs 36a and 36b, the language of claim 34 does not
preclude such an arrangement for the reasons explained above.
The preponderance of the evidence supports the Examiner’s finding
that Castellano discloses a “module adapted to electrically connect to said
wiring panel so as to transfer power from said power cable.” Accordingly,
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we sustain the rejection of claim 34, as well as the rejection of dependent
claim 35, which is not separately argued by Appellant.
4
See App. Br. 10;
Reply Br. 9.

B. Anticipation Rejection Based on Smith (Claims 34 and 35)
We begin by noting that the Examiner finds that three different
embodiments depicted in Figures 1-3 of Smith each disclose all of the
limitations of claim 34 depending on how the claim is interpreted. Ans. 18-
27; Final Rej. 5-6, 18-20. Because we agree with the Examiner’s
interpretation and rejection with respect to the embodiment of Figure 2, we
need not reach the Examiner’s analysis of the other embodiments.
Similar to its arguments regarding Castellano, Appellant’s arguments
regarding Figure 2 of Smith are premised on its proposed interpretation of
“module adapted to electrically connect to said wiring panel” in claim 34.
Appellant argues that the claim requires a keyed module fixture separate
from electrical contacts of a module, but pins 36 in Smith both provide
keying and are electrical contacts that electrically connect face member 34 to
cover plate 24. App. Br. 11; Reply Br. 10.
In light of the claim interpretation discussed above, we are not
persuaded by Appellant’s arguments. Figure 2 of Smith shown below
depicts a face member 34 having three contact strips or pins 36 (hot, neutral,

4
With respect to dependent claim 35, the Examiner finds that prongs 36a are
the claimed “keyed module fixture” and ground prong 36b is the claimed
“ground bar configured to engage a ground connector in said proper
orientation.” Ans. 16-18.
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and ground), which engage with contact plate 12 through corresponding
slots 37 in cover plate 24:

Power is transferred from electrical cable 14 in housing 28 to contact strips
or pins 36 inserted in slots 37 and ultimately to an electrical device plugged
in to socket 40 of face member 34. Smith, p. 2, ll. 11-53. As the Examiner
found, face member 34 is adapted to electrically connect to cover plate 24
and contact plate 12, via hot and neutral contact strips or pins 36, so as to
transfer power from the power cable. Ans. 22-24; Final Rej. 5-6. While an
electrical connection between face member 34 and contact plate 12 is made,
and power is transferred, via hot and neutral contact strips or pins 36, the
language of claim 34 does not preclude such an arrangement for the reasons
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explained above.
The preponderance of the evidence supports the Examiner’s finding
that Smith discloses a “module adapted to electrically connect to said wiring
panel so as to transfer power from said power cable.” Accordingly, we
sustain the rejection of claim 34.
5

With respect to claim 35, Appellant acknowledges that Figure 2 of
Smith discloses a ground bar (i.e., the third contact strip or pin 36), but
argues that Smith fails to disclose a ground bar separate from a
“nonconductive” keyed module fixture. App. Br. 13. Ground contact strip
or pin 36, however, is separate from hot and neutral contact strips or pins 36
(which the Examiner finds are a “keyed module fixture”). See Ans. 22-24.
Further, Appellant’s argument that the keyed module fixture must be
“nonconductive” essentially repeats its claim interpretation argument that
the keyed module fixture cannot be involved in transferring power between
the module and wiring panel. We disagree with Appellant’s interpretation
for the reasons explained above. Accordingly, we sustain the rejection of
claim 35 as well.

C. Obviousness Rejection Based on McCartney/McCoy (Claim 34)
Appellant makes two arguments with respect to the rejection based on
McCartney and McCoy. First, Appellant argues that McCoy does not have a
keyed panel fixture and keyed module configured to engage so as to

5
Appellant does not dispute that the “proper orientation” limitation of claim
34 is met by the three-prong arrangement of Castellano and Figure 2 of
Smith. See Tr. 6:4-6, 7:4.
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removably attach the module to the wiring panel only in a “proper
orientation.” App. Br. 13-14. Appellant contends that the purpose of keying
in McCoy is to permit installation only at a proper “location,” not a proper
“orientation,” in a modular wall power distribution system. Id. Regardless
of McCoy’s purpose for keying, however, we agree with the Examiner that
McCoy teaches installation only in a proper orientation (as well as a proper
location).
6
Specifically, input plugs 34 “formed by hollow plug halves 52
and 53” of different sizes correspond to and fit with openings 50 of
receptacle connector 48. McCoy, col. 6, l. 60-col. 7, l. 2 (“receptacle
connector 48 and input plug 34 are ‘keyed,’ as is known in the art, so that
receptacle assembly 30 can only be connected at certain points in power
distribution system 10”); col. 7, ll. 43-49; Figs. 1-2; see Ans. 29-30.
Second, Appellant argues that a person of ordinary skill in the art
would not have had reason to incorporate the keying of McCoy into the
system of McCartney to prevent upside-down installation “because
nonpolarized outlets [like McCartney] will function in an upside-down
orientation” and therefore keying in McCartney would be “unnecessary.”
App. Br. 14. Appellant further contends that a person of ordinary skill
would have considered the systems of McCartney and McCoy incompatible
with each other and in different fields of endeavor, and would not have
combined the teachings of the references because “McCartney is for use in a

6
We also note that the Examiner finds that McCartney teaches keying to
achieve installation in only a “proper orientation” as well. Ans. 28-29.
Because we agree with the Examiner with respect to the teachings of
McCoy, we need not reach this issue.
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‘flush’ receptacle system, while McCoy is for use in a ‘self-contained’
receptacle system that is deliberately designed to exclude electrical boxes.”
Id. at 14-15 (citing Evidence App’x, App. Br. 18, Declaration of Steven
Purves ¶¶ 16, 19); Reply Br. 13-14.
Appellant has not demonstrated error in the Examiner’s conclusion of
obviousness as to claim 34. As explained above, we do not interpret “proper
orientation” as limited to a single right-side-up (as opposed to upside-down)
orientation. Moreover, the question is not whether it would have been
necessary or not to combine the teachings of the two prior art references, but
rather whether a person of ordinary skill in the art would have had some
reason to do so to achieve the claimed invention. See Ans. 30-31.
Incorporating the keying of McCoy into the assembly of McCartney, as the
Examiner found, would “prevent a flipped or any other orientation of
connection, i.e., only in a proper location and orientation.” Id. at 29-30;
Final Rej. 8-9. Appellant does not sufficiently rebut the Examiner’s
articulated reason for combining McCartney and McCoy of allowing users
to attach a module only at a proper location and orientation.
As to Appellant’s arguments regarding the differences between the
references, we see no reason why an ordinarily skilled artisan would not, or
could not, modify the disclosed assemblies to incorporate McCoy’s method
of keying into the McCartney outlet box. Both references relate to the
connection of an outlet to a wiring panel in an electrical outlet wiring
assembly, and a person of ordinary skill in the art of such assemblies would
be able to use his or her skill to modify the disclosed structures as necessary
to combine them. See Ans. 31-32; In re Keller, 642 F.2d 413, 425 (CCPA
1981) (“The test for obviousness is not whether the features of a secondary
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reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”).
Accordingly, we sustain the rejection of claim 34.

CONCLUSION
We conclude that:
(1) the Examiner correctly determined that claims 34 and 35 are
anticipated by Castellano;
(2) the Examiner correctly determined that claims 34 and 35 are
anticipated by Smith; and
(3) the Examiner correctly determined that claim 34 is unpatentable
over McCartney in view of McCoy.

DECISION
For the above reasons, the rejection of claims 34 and 35 under 35
U.S.C. § 102(b) as anticipated by Castellano, the rejection of claims 34 and
35 under 35 U.S.C. § 102(b) as anticipated by Smith, and the rejection of
claim 34 under 35 U.S.C. § 103(a) as unpatentable over McCartney in view
of McCoy are affirmed.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

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ak

Patent Owner:

DLA Piper LLP US
P.O. Box 2758
Reston, VA 20195

Third Party Requester:

Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050