Ex Parte Ostrovsky et al

Patent Trial and Appeal Board

Jul 21, 2016

13252157 (P.T.A.B. Jul. 21, 2016)

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.
13/252,157 10/03/2011 Michael OSTROVSKY OSTROVSKY ET AL - 1
CON
9030
73990 7590 07/22/2016
Collard & Roe, P.C./Leviton
1077 Northern Blvd
Roslyn, NY 11576
EXAMINER
MISKA, VIT W
ART UNIT PAPER NUMBER
2833
MAIL DATE DELIVERY MODE
07/22/2016 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 OSTROVSKY, ALFRED LOMBARDI,
SELIN TANSI GLICKMAN, and CHERYL SAMARTANO1
____________

Appeal 2015-000747
Application 13/252,157
Technology Center 2800
____________
Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
DEBRA L. DENNETT, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s
rejection of claims 1–30 under 35 U.S.C. § 103(a) as unpatentable over
Stephens (US 2005/0126897 A1, published June 16, 2005). We have
jurisdiction under 35 U.S.C. § 6.
We AFFIRM.

1 Leviton Manufacturing Company, Inc. is identified as the real party in
interest. App. Br. 2.
Appeal 2015-000747
Application 13/252,157
2
Appellants claim a cover plate 500 for an electrical device having a
processor and an interface 501, the cover plate comprising a key 552 adapted
and configured such that when the cover plate is coupled to the electrical
device, the key 552 selectively interacts with the interface 501 such that the
processor performs a set of predetermined instructions to automatically
reconfigure the different setting levels of the electrical device (independent
claim 1, Figs. 5–6). Appellants also claim a process for programming an
electrical device using such a key and interface (independent claim 7) as
well as an electrical wall box mountable self-programmable load control
device comprising the aforementioned key and interface (remaining
independent claim 15).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
Claim 1. A cover plate for an electrical device having a processor,
and an interface, the interface for configuring different setting levels of the
electrical device, the cover plate comprising:
a front face;
a back face; and
a key comprising a protrusion extending from said back face;
wherein said key is adapted and configured such that when the cover
plate is coupled to the electrical device, said key selectively interacts with
the interface such that the processor performs a set of predetermined
instructions to automatically reconfigure the different setting levels of the
electrical device.

Appellants do not present separate arguments specifically directed to
the dependent claims on appeal (App. Br. 14–23). Therefore, the dependent
claims will stand or fall with their parent independent claims of which claim
1 is representative.
Appeal 2015-000747
Application 13/252,157
3
We will sustain the above rejection for the reasons well stated by the
Examiner in the Final Action and the Answer. The following comments are
added for emphasis.
Regarding the claim feature of automatically reconfiguring the setting
levels of the electrical device, the Examiner relies on disclosures in
paragraphs 24, 52, and 55 of Stephens to support a conclusion that it would
have been obvious “to employ the cover plate and switch configurations of
the interface and associated circuitry of Fig. 10 to control different load
setting levels of the device or appliance, such as temperature or lighting
levels, as suggested generally and for other disclosed embodiments” (Final
Action 4). The Examiner relies on the software embodiment disclosed in
lines 21–24 of Stephens’ paragraph 24 as teaching or suggesting the claim
feature wherein such reconfiguring is performed automatically (id. at 5).
Appellants dispute the Examiner’s obviousness conclusion with the
following argument.
[P]aragraphs 24 and 55 do not disclose a processor that
automatically reconfigures the different setting levels of the
electrical device. Stephens in paragraph 55 only mentions
“logic states” and “functionality” but it does not disclose any
“setting levels” as claimed in claim 1. Starting with Stephens,
for one to change the setting levels, one skilled in the art would
have to resort to reprogramming the device as set forth in
paragraph 24 of Stephens. Thus, Stephens is entirely different
from that of claim 1 of the present invention because the key of
claim 1 automatically reconfigures the setting levels of the
device.

App. Br. 16.
Appellants’ argument is not persuasive for the reasons detailed by the
Examiner (Ans. 2–3). We emphasize that Appellants do not address the
Appeal 2015-000747
Application 13/252,157
4
particular disclosures of Stephens relied on by the Examiner such as the
software embodiment disclosed in lines 21–24 of paragraph 24 (i.e.,
regarding the claim feature of automatically reconfiguring) and paragraph 52
(i.e., regarding the claim feature of reconfiguring setting levels specifically).
In the record before us, Appellants fail to show error in the Examiner’s
findings of fact or conclusion of law.
For similar reasons, we perceive no convincing merit in Appellants’
contention that the Examiner’s obviousness conclusion is not supported by
facts (App. Br. 17–18). Again, Appellants fail to address the Stephens
disclosures relied on by the Examiner as providing factual support for the
conclusion of obviousness.
For completeness, we observe that Appellants state they traverse the
Examiner’s official notice regarding dependent claims 4, 24, 25, 28, and 29
(id. at 19–20). The Examiner states that the traverse is untimely and
improper (Ans. 4–5). In addition, we emphasize that Appellants do not
separately argue the dependent claims in question (App. Br. 20, 23). For
these reasons, Appellants’ traverse is not relevant to the issue resolving this
appeal, namely, the above discussed failure of Appellants to identify harmful
error in the Examiner’s rejection of the independent claims.
For the reasons given by the Examiner and emphasized above, we
sustain the § 103 rejection of claims 1–30 as unpatentable over Stephens.
The decision of the Examiner is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED