Michael Gzybowski

Patent Trials and Appeals Board

Nov 5, 2020

2020000591 (P.T.A.B. Nov. 5, 2020)

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.
15/888,805 02/05/2018 Michael S. Gzybowski 5856
7590 11/05/2020
Michael S. Gzybowski
832 Earhart Road
Ann Arbor, MI 48105
EXAMINER
PATEL, HARSHAD C
ART UNIT PAPER NUMBER
2831
MAIL DATE DELIVERY MODE
11/05/2020 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 MICHAEL S. GZYBOWSKI

____________

Appeal 2020-000591
Application 15/888,805
Technology Center 2800
____________

Before CHRISTOPHER C. KENNEDY, SHELDON M. MCGEE and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–20.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the inventor, Michael S. Gzybowski, as
the real party in interest. Corrected Appeal Brief filed July 18, 2019
(“Appeal Br.”) at 1.
2 Final Office Action entered December 20, 2018 (“Final Act.”) at 1.
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CLAIMED SUBJECT MATTER
Appellant claims a modular two-prong polarized electrical plug
(independent claim 1), a modular polarized electrical plug adaptor
(independent claim 7), and a kit for marking the top of a two-prong
polarized electrical plug (independent claim 13). Appeal Br. 2–4. Claims 1
and 7 illustrate the subject matter on appeal, and read as follows:
1. A modular two-prong polarized electrical plug that
provides visual confirmation of proper orientation with respect
to a wall mounted polarized electrical receptacle or outlet
before and after the modular two-prong polarized electrical plug
is plugged into the wall mounted polarized electrical receptacle
or outlet which comprises:
a plug housing having a top and a bottom and a front
face;
an electrically conductive polarized prong or blade that
extends outward from front face of the plug housing;
an electrically conductive non-polarized prong or blade
that extends outward from the front face of the plug housing;
indicia module receiving structures provided on both the
top and bottom of the plug housing; and
an indicia module having an indicia element provided
thereon,
wherein the indicia[l] module is configured to be
attached to one of either of the indicia module receiving
structures provided on the top and bottom of the plug housing.

7. A modular polarized electrical plug adaptor configured to
be coupled to a polarized two-prong electrical plug, wherein the
polarized electrical plug adaptor provides for visual
confirmation of proper orientation with respect to a wall
mounted polarized electrical receptacle or outlet before and
after the modular polarized electrical plug adaptor is plugged
into the wall mounted polarized electrical receptacle or outlet,
the polarized electrical plug adaptor comprises:
a body having a top and a bottom and a front and a back;
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an electrically conductive polarized prong or blade that
extends outward from the front of the body;
an electrically conductive non-polarized prong or blade
that extends outward from the front of the body;
a polarized socket provided in the back of the body;
a non-polarized socket provided in the back of the body,
said polarized socket and non-polarized socket being
configured to receive a two-prong polarized electrical plug
therein;
electrical conductive elements within the body that
connect the polarized socket to the polarized prong or blade and
connect the non-polarized socket to the non-polarized prong or
blade;
indicia module receiving structures provided on both the
top and bottom of the body; and
an indicia module having an indicia element provided
thereon which indicia module is configured to be attached to
one of either of the indicia module receiving structures
provided on the top and bottom of the body.

Appeal Br. 27–29 (Claims Appendix) (emphasis and spacing added).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered September 5, 2019 (“Ans.”):
I. Claims 1–6 and 13–20 under 35 U.S.C. § 103 as unpatentable
over Friedman3 in view of Siemon4 or Worrell;5 and
II. Claims 7–12 under 35 U.S.C. § 103 as unpatentable over Lee6

3 Friedman, US 4,861,288, issued August 29, 1989.
4 Siemon, US 5,620,335, issued April 15, 1997.
5 Worrell, GB 2,045,546 A, published October 29, 1980.
6 Lee, US 2012/0045926 A1, published February 23, 2012.
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in view of Friedman and Siemon or Worrell.7
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s timely contentions,8 we affirm the Examiner’s rejection
of claims 1–6 and 13–20 under 35 U.S.C. § 103 for the reasons set forth in
the Final Action, the Answer, and below, and we reverse the Examiner’s
rejection of claims 7–12 under 35 U.S.C. § 103 for the reasons set forth in
the Appeal and Reply briefs, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each issue the Appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Rejection I
We first address the Examiner’s rejection of claims 1–6 and 13–20
under 35 U.S.C. § 103 as unpatentable over Friedman in view of Siemon or

7 Like the rejection of claims 1–6 and 13–20 (Rejection I), the Examiner
appears to rely on Siemon and Worrell in the alternative in the rejection of
claim 7–12 (Rejection II). Final Act. 9–12.
8 We do not consider any new argument Appellant presents in the Reply
Brief that Appellant could have presented in the Appeal Brief. 37 C.F.R. §
41.37(c)(1)(iv); 37 C.F.R. § 41.41(b)(2) (arguments raised for the first time
in the Reply Brief that could have been raised in the Appeal Brief will not be
considered by the Board unless good cause is shown).
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Worrell.
Appellant presents arguments for this rejection that are not directed to
any particular claim, but are based on subject matter recited in claim 1.
Appeal Br. 5–21. We, therefore, select claim 1 as representative, and decide
the appeal as to claims 1–6 and 13–20 based on claim 1 alone. 37 C.F.R. §
41.37(c)(1)(iv).
Claim 1 recites a modular two-prong polarized electrical plug that
comprises, in part, a plug housing, indicia module receiving structures
provided on the top and bottom of the plug housing, and an indicia module
on which an indicia element is provided that is configured to be attached to
one of the indicia module receiving structures.
Friedman discloses a two-prong cordset that includes plug member 10
(plug housing) having a front face and a back face, first and second
terminals 18 (prongs) extending outward from the front face, cord 14
extending outward from the back face and into the back of connector
member 12. Friedman col. 2, ll. 3–8; Fig. 2. Friedman discloses that
connector member 12 has a front face that includes first and second
receptacles 16. Id. Figure 2 of Friedman shows that the first and second
terminals 18 (prongs) have different shapes and sizes, and shows that the
first and second receptacles 16 also have different shapes and sizes.
One of ordinary skill in the art would have understood from these
disclosures in Friedman that plug member 10 (plug housing) is polarized due
to the different shapes and sizes of first and second terminals 18 (prongs).
One of ordinary skill in the art would have further understood that terminals
18 (prongs) are designed to plug into a polarized electrical outlet, while
receptacles 16 are designed to receive prongs from the plug of an electrical
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device or appliance, such that Friedman’s cordset is designed to function as
an extension cord to indirectly connect the plug of an electrical device or
appliance to a polarized electrical outlet.
The Examiner finds that Friedman does not disclose that the top and
bottom of plug member 10 (plug housing) include indicia module receiving
structures, and does not disclose an indicia module including an indicia
element configured to be attached to one of the indicia module receiving
structures. Final Act. 3. The Examiner relies on Siemon or Worrell for
suggesting inclusion of such features in Friedman’s plug member 10 (plug
housing). Final Act. 3–4.
Siemon discloses that telecommunication consoles include numerous
jacks for receiving cables connected to different devices or pieces of
equipment. Siemon col. 1, ll. 17–27. Siemon discloses that because a
multiplicity of cables are usually associated with a single telecommunication
console, it is difficult to determine the type of device or equipment being
connected to each jack in the console. Id. Siemon addresses this problem
by providing strain relief boot 70 disposed on plug 84 of a
telecommunications cable having top and bottom recesses for receiving and
retaining inserts 76, 76’, which each include an icon. Siemon col. 1, ll. 43–
48; col. 4, ll. 7–12; Fig. 10. Siemon discloses that the icon may be a symbol
or wording, or may be color coded, and may allow identification (at the
location of the plug) of the device or equipment to which the
telecommunications cable is attached. Siemon col. 1, ll. 7–9, 60–64. Figure
5A of Siemon illustrates a computer terminal icon and Figure 5B illustrates a
telephone icon, while Figure 10 of Siemon illustrates an arrow icon. Siemon
col. 3, ll. 8–15.
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Worrell discloses that a single power supply point or socket is often
used for multiple electric appliances, but “it may not be possible or
convenient for all the appliances which may need a current supply from a
particular power point to be permanently connected thereto by means of
their plugs.” Worrell p. 1, ll. 5–16. Worrell discloses that, consequently,
“care has to be taken to identify correctly the . . . plug which has to be
inserted in a socket in order that a selected appliance may be used.” Worrell
p. 1, ll. 18–21. To facilitate such identification, Worrell discloses a plug for
an electric appliance that includes a recess on an outward face for receiving
and displaying a label that indicates the appliance to which the plug is
connected. Worrell p. 1, ll. 29–36, 42–53; Fig. 1. Worrell discloses that the
“intention is that a plug of this kind with a suitably appropriate identifying
label would be attached to the electrical lead of each of a collection of
appliances in order positively to identify the appliance which is being
connected or is connected to a power point at any particular time without the
necessity for tracing backwards from the plug along the electrical lead to the
appliance.” Worrell p. 1, ll. 54–62.
In view of these disclosures in Siemon or Worrell, the Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to modify the top and bottom surfaces of plug member 10 (plug housing) of
Friedman’s cordset to include recesses (indicia module receiving structures)
for receiving an icon or label (indicia module having an indicia element
provided thereon) to allow identification of the device or appliance to which
Friedman’s cordset is attached “so as to provide a visual confirmation of
proper orientation with respect to a polarized electrical receptacle or outlet
before and after being plugged into the outlet.” Final Act. 3–4.
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Appellant argues that the strain relief boot disclosed in Siemon “has
no applicability at all to Friedman” because “the problem Siemon’s
invention is directed to addressing and solving—identifying what
telecommunication signals are being transmitted through multiple
telecommunication cables—is not found in or relevant to or associated with
the use of the cord sets of Friedman since all such cord sets are connected to
standard 110 volt outlet power currents (not like different cord sets [that] can
be plugged into sockets that supply different types of signals).” Appeal Br.
10. Appellant argues that, therefore, “Siemon’s reasons for providing the
strain relief boots for telecommunication cables does not lead to modifying
the cord sets of Friedman.” Id.
As discussed above, however, Siemon and Worrell both address the
problem of identifying a particular device to which a plug is connected
through a cable or electrical lead. Siemon discloses that when a multiplicity
of cables are associated with a single telecommunication console, it is
difficult to determine the type of device or equipment being connected
through each cable to the jacks in the console. Siemon addresses this
problem by forming recesses on the top and bottom of a telecommunications
cable strain relief boot, and disposing inserts in the recesses that include an
icon identifying the device or equipment to which the telecommunications
cable is attached. Similarly, Worrell discloses that when a single power
supply point or socket is used for multiple electric appliances whose plugs
are not permanently connected to the socket, care must be taken to correctly
identify which plug must be inserted in the socket to allow use of a selected
appliance. Worrell discloses identifying the correct plug “without the
necessity for tracing backwards from the plug along the electrical lead to the
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appliance” by including a recess on the plug’s outward face for receiving
and displaying a label that indicates the appliance to which the plug is
connected.
Although Friedman’s cordset may connect to a standard outlet as
Appellant argues, one of ordinary skill in the art would have recognized that
multiple cordsets (extension cords) as disclosed in Friedman are often used
to connect numerous devices or appliances to a single socket or power strip,
as disclosed in Worrell. One of ordinary skill in the art seeking to permit
identification of a particular device or appliance to which Friedman’s
cordset is connected—without having to trace backwards from plug member
10 (plug housing) along cord 14 to the device or appliance—reasonably
would have been led to modify the top and bottom surfaces of plug member
10 (plug housing) of Friedman’s cordset to include recesses (indicia module
receiving structures) for receiving an icon or label (indicia module having an
indicia element provided thereon) that identifies the particular appliance to
which the cordset is attached, as disclosed in Siemon. Contrary to
Appellant’s arguments, Siemon’s disclosures are, therefore, applicable to
Friedman’s cordset.
Appellant argues that “[n]one of Friedman, Siemon or Worrell teach
providing an indicia element on a plug for purposes of confirming proper
orientation with respect to a polarized electrical receptacle or outlet before
and after being plugged into the outlet. Appeal Br. 11. Appellant argues
that, therefore, “the function of providing visual confirmation of proper
orientation with respect to a polarized electrical receptacle or outlet before
and after being plugged into the outlet is novel over, and not recognized or
appreciated by, the teachings of the prior art and cannot be relied upon as a
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basis for supporting a combination of the prior art in an obviousness
rejection.” Appeal Br. 11; see also Reply Br. 3–4, 7, and 14.
We point out initially that, as discussed above, the Examiner’s
rationale for combining the relied-upon disclosures of Siemon and Worrell
with those of Friedman is not based solely on allowing confirmation of
proper orientation of first and second terminals 18 (prongs) of Friedman’s
cordset with respect to a polarized electrical receptacle or outlet before and
after being plugged into the outlet. Rather, the Examiner proposes
modifying Friedman’s plug member 10 (plug housing) to include recesses
(indicia module receiving structures) for receiving an icon or label (indicia
module having an indicia element provided thereon) to allow identification
of a device or appliance to which Friedman’s cordset is attached. Final Act.
3–4.
Furthermore, the recitation in the preamble of claim 1 that the claimed
modular two-prong polarized electrical plug “provides visual confirmation
of proper orientation with respect to a wall mounted polarized electrical
receptacle or outlet before and after the modular two-prong polarized
electrical plug is plugged into the wall mounted polarized electrical
receptacle or outlet” is directed to a function or intended use of the electrical
plug, rather than a structural element or feature of the plug.
It has long been held that “apparatus claims cover what a device is,
not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909
F.2d 1464, 1468 (Fed. Cir. 1990). Consequently, the “patentability of
apparatus claims must depend upon structural limitations and not upon
statements of function.” In re Michlin, 256 F.2d 317, 320 (CCPA 1958); see
also In re Wiseman, 596 F.2d 1019, 1023 (CCPA 1979) (it “is not the law”
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that “a structure suggested by the prior art, and, hence, potentially in the
possession of the public, is patentable . . . because it also possesses an
[i]nherent, but hitherto unknown, function which [the applicants] claim to
have discovered.”). A claimed device, therefore, must be distinguished from
the prior art on the basis of its structure, and where there is reason to believe
that the structure of the prior art is inherently capable of performing a
claimed function, the burden shifts to the applicant to show that the claimed
function patentably distinguishes the claimed structure from the prior art
structure. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997); In re
Hallman, 655 F.2d 212, 215 (CCPA 1981).
There is no dispute on the record before us that Friedman’s cordset
modified as disclosed in Siemon and Worrell to include recesses (indicia
module receiving structures) in the top and bottom surfaces of Friedman’s
plug member 10 (plug housing) for receiving an icon or label (indicia
module having an indicia element provided thereon) that identifies a
particular appliance to which the cordset is attached meets the structural
limitations of claim 1. Compare Final Act. 2–4, with Appeal Br. 5–21. A
reasonable basis therefore exists for finding that Friedman’s cordset as so
modified would be capable of confirming proper orientation of first and
second terminals 18 (prongs) with respect to a polarized electrical receptacle
or outlet before and after terminals 18 (prongs) are plugged into the outlet.
The burden, therefore, shifts to Appellant to show otherwise. In re Best, 562
F.2d 1252, 1255 (CCPA 1977). On the record before us, Appellant does not
meet this burden because Appellant does not demonstrate through objective
evidence that Friedman’s cordset modified as proposed by the Examiner
would not be capable of providing visual confirmation of proper orientation
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with respect to a wall-mounted polarized electrical receptacle or outlet
before and after terminals 18 (prongs) are plugged into the wall-mounted
polarized electrical receptacle or outlet, as recited in claim 1.
Appellant argues that, as disclosed in Appellant’s Specification,
“absent the indicia modules of the present invention one cannot readily
confirm that a plug that has been previously inserted into an outlet or
receptacle was/is proper oriented for safety purposes prior to being inserted.”
Appeal Br. 12 (citations to Specification not provided). Appellant argues
that Appellant’s invention, therefore, solves a particular problem concerning
safety that the prior art—which only teaches identifying a component or
signal associated with a plug or jack—does not teach, suggest or appreciate.
Appeal Br. 12–13 (citing In re Kaslow, 707 F.2d 1366 (Fed. Cir. 1983).
The court in Kaslow, however, indicated that “a patentable invention
may be in the discovery of the source of a problem even though the remedy
may be obvious once the source of the problem is identified.” Kaslow, 707
F.2d at 1373 (quoting In re Sponnoble, 405 F.2d 578, 585 (CCPA 1969)
(emphasis added). Appellant asserts that the prior art does not teach,
suggest, or appreciate the problem that Appellant’s invention is said to solve,
rather the source of the problem. Appellant’s reliance on Kaslow, therefore,
does not support Appellant’s argument.
One of ordinary skill in the art would have readily appreciated the
need to properly orient the prongs of a polarized plug in a polarized outlet.
The discovery of a solution to such a problem that is readily noticeably by
one of ordinary skill in the art does not impart patentability. In re Ludwig,
353 F.2d 241, 244 (CCPA 1965) (“appellant says . . . that he ‘recognized
that the trend toward heavier arms created new problems’ and that this is an
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‘essential contribution’ . . . However, the act of perceiving that heavier arms
caused problems not encountered with light weight arms formerly used was
not the discovery of the source of the trouble. The trouble was the twisting
distortion of the lighter weight arms when they were lengthened to
accommodate larger windshields . . . That trouble needed no ‘discovery,’
only simple observation of the fact that the arms twisted when in operation. .
. Appellant’s discovery, if he discovered anything, was the solution to the
problem (seam welding the arm), not the problem itself.”).
As discussed above, a reasonable basis exists for finding that
Friedman’s cordset modified as proposed by the Examiner in view of the
relied-upon disclosures of Siemon and Worrell would be capable of
confirming proper orientation of terminals 18 (prongs) with respect to a
polarized electrical receptacle or outlet before and after terminals 18
(prongs) are plugged into the outlet, and Appellant does not meet
Appellant’s burden of demonstrating otherwise. As the Supreme Court
explained, “[i]t is not invention to perceive that the product which others had
discovered had qualities they failed to detect.” Gen. Elec. Co. v. Jewel
Incandescent Lamp Co., 326 U.S. 242, 249 (1945).
Appellant argues that Siemon is not “reasonably pertinent to the
particular problem with which the applicant was concerned,” because
Siemon does not teach a two-prong polarized electrical plug, Siemon’s plug
cannot be plugged into a jack in an improper orientation, Siemon provides
icons only to identify devices to which plugs and cables are connected, and
Siemon’s plug/boot combination inherently includes a structure used to
orient a plug with respect to a jack. Appeal Br. 15.
“A reference is reasonably pertinent if . . . it is one which, because of
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the matter with which it deals, logically would have commended itself to an
inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992).
Appellant’s Specification explains that Appellant’s invention
addresses a problem that arises from polarized electrical outlets that have
different ground socket configurations. Spec. ¶¶ 28, 29. The Specification
indicates that a polarized outlet’s ground socket orientation determines how
a polarized plug must be oriented when plugged into the outlet, requiring
consumers to orient plugs differently for outlets having different ground
socket configurations. Spec. ¶ 3. According to the Specification,
conventional plugs “present a significant challenge that involves having
consumers who purchase and use the plugs . . . choose the correct plugs . . .
to use in instances where the ground sock of a particular electrical outlet is
oriented downward or upward . . . [which] determines which surface of a
plug . . . will be the top when oriented to and plugged into the outlet.” Id.
Siemon’s disclosure of an arrow icon disposed in a recess of a strain
relief boot for a telecommunications plug logically would have commended
itself to the attention of one of ordinary skill in the art seeking to address this
problem because such a skilled artisan would have recognized that the arrow
icon would provide information that would allow a user to correctly orient a
plug with respect to a jack or socket. Consequently, regardless of whether
the plug disclosed in Siemon is a two-prong polarized electrical plug, and
regardless of whether it cannot be plugged into a jack in an improper
orientation due to its “inherent” structure as Appellant argues, one of
ordinary skill in the art nonetheless would have recognized that an arrow
icon as illustrated in Siemon’s Figure 10 that can be inserted in a recess in
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either the top or bottom surface of a plug boot would allow a user to
correctly orient the plug before inserting it into a socket or jack, avoiding
potential damage to the plug, socket, or jack caused by an attempt to insert
an incorrectly oriented plug. One of ordinary skill in the art, therefore,
would have found Siemon’s disclosures to be reasonably pertinent to the
particular problem with which Appellant was concerned: providing a means
to allow consumers to determine the correct orientation of a polarized plug
with respect to a polarized electrical outlet.
Appellant argues that “the present invention properly considered
structurally and functionally meets a long felt need that has existed since the
introduction of polarized electrical plugs and outlets” because the invention
“addresses problems with two-prong polarized electrical plugs that are
caused by such plugs being visually indistinguishable from the top and
bottom, and the possibility of inadvertently plugging such plugs into
electrical outlets in an improper orientation which can result in hazardous
electrical situations.” Appeal Br. 13.
Appellant’s unsupported argument, however, is insufficient to meet
the evidentiary burden required to establish a long-felt need that was solved
by Appellant’s invention. In re Gershon, 372 F.2d 535, 538–39 (CCPA
1967) (Establishing long-felt need requires objective evidence showing
existence of a persistent problem recognized by those of ordinary skill in the
art for which a solution was not known.). On the record before us, Appellant
provides only attorney argument, and does not provide any objective
evidence that demonstrates that there was a long-felt need—an unsolved
problem—that was solved by Appellant’s invention. In re Mixon, 470 F.2d
1374, 1377 (CCPA 1973) (“appellants’ arguments are tempered by the fact
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there is little, if any, tangible evidence to support a contention that their
invention actually has provided a long awaited, widely-accepted, and
promptly-adopted solution to the problem extant in the art.”).
Therefore, considering the totality of the evidence relied upon in this
appeal, a preponderance of the evidence weighs in favor of the Examiner’s
conclusion of obviousness. We, accordingly, sustain the Examiner’s
rejection of claim 1–6 and 13–20 under 35 U.S.C. § 103.
Rejection II
We turn now to the Examiner’s rejection of claims 7–12 under 35
U.S.C. § 103 as unpatentable over Lee in view of Friedman and Siemon or
Worrell.
Claim 7 recites a modular polarized electrical plug adaptor that
comprises, in part, a body having a top and a bottom and a front and a back,
and polarized and non-polarized sockets provided in the back of the body.
Claim 7 requires the polarized and non-polarized sockets to be configured to
receive a two-prong polarized electrical plug.
The Examiner finds that Lee discloses modular polarized electrical
plug adaptor 10 comprising body 101 having a top, bottom, front, and back.
Final Act. 9–10 (citing Lee Fig. 3). The Examiner finds that Lee discloses
two non-polarized sockets 104 provided in the back of body 101, but does
not disclose that one of sockets 104 is polarized. Final Act. 10. The
Examiner finds, however, that Friedman discloses plug 12 that includes
polarized and non-polarized sockets. Final Act. 10; see also Friedman Fig.
2.
In view of this disclosure in Friedman, the Examiner concludes that it
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would have been obvious to one of ordinary skill in the art to modify Lee’s
plug adaptor 10 to include a polarized socket as taught by Friedman “in
order to guide and avoid the incorrect electrical connection.” Final Act. 10.
On the record before us, however, the Examiner does not adequately
establish that a combination of the relied upon disclosures of Lee and
Friedman would have suggested a modular polarized electrical plug adaptor
comprising a polarized socket and a non-polarized socket configured to
receive a two-prong polarized electrical plug, as required by claim 7, for
reasons expressed by Appellant and discussed below.
Figure 3 of Lee cited by the Examiner illustrates identifiable plug 10
(adapter) having body 101 including first power output port 104 (non-
polarized socket) capable of receiving third power input port 301 (first
prong) of plug 30. Lee ¶ 23; Fig. 3. Figure 3 of Lee shows that plug 30
includes a second (unlabeled) prong having the same shape as third power
input port 301 (first prong), and shows that body 101 includes a second
(unlabeled) non-polarized socket shaped and positioned to receive the
second prong. Figure 3 of Lee also shows that plug 30 includes a third
prong having a different shape from the first and second prongs, and shows
that body 101 includes a third socket shaped and positioned to receive the
third prong. Figure 3 of Lee shows that the three prongs of plug 30 are
arranged in a triangular configuration, which one of ordinary skill in the art
would have understood to indicate that plug 30 is a three prong grounded
plug, rather than a two-prong polarized plug as recited in claim 7.
As Appellant points out (Appeal Br. 22–23), because Lee’s plug 30
has three prongs arranged in a triangular configuration, and because the third
prong has a different shape from the first and second prongs, it would be
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impossible to insert plug 30 into the three sockets of Lee’s identifiable plug
10 (adapter) in an “incorrect electrical connection” because only a single
orientation of plug 30 will allow the three prongs to align with
corresponding sockets. Consequently, the Examiner’s rationale for
modifying one of Lee’s socket to be polarized as taught by Friedman “in
order to guide and avoid the incorrect electrical connection” lacks rational
underpinning. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”).
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). On the record before us,
the Examiner does not provide a reasoned explanation supported by
objective evidence for why one of ordinary skill in the art would have
modified Lee in the manner proposed in view of the relied-upon disclosures
of Friedman so as to arrive at a modular polarized electrical plug adaptor
comprising a polarized socket and a non-polarized socket configured to
receive a two-prong polarized electrical plug, as required by claim 7.
Because the Examiner does not meet this burden, we do not sustain
the Examiner’s rejection of claim 7, and claims 8–12, which each depend
from claim 7, under 35 U.S.C. § 103.

Appeal 2020-000591
Application 15/888,805

19
CONCLUSION

Claims

35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–6, 13–20 103 Friedman,
Siemon or
Worrell
1–6, 13–20
7–12 103 Lee, Friedman,
Siemon or
Worrell
7–12
Overall
Outcome
1–6, 13–20 7–12

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).

AFFIRMED IN PART