Salas, Luis F. et al.

Patent Trials and Appeals Board

Jan 3, 2020

29547573 - (D) (P.T.A.B. Jan. 3, 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.
29/547,573 12/04/2015 Luis F. Salas 15-CWD-1177DES 5909
101730 7590 01/03/2020
ECKERT SEAMANS CHERIN & MELLOTT, LLC
EATON CORPORATION
600 GRANT STREET
44TH FLOOR
PITTSBURGH, PA 15219
EXAMINER
SHIELDS, RHEA M
ART UNIT PAPER NUMBER
2915
NOTIFICATION DATE DELIVERY MODE
01/03/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipmail@eckertseamans.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LUIS F. SALAS, OSCAR L. NEUNDORFER,
and SAIVARAPRASAD MURAHARI
____________

Appeal 2019-001591
Application 29/547,573
Technology Center 2900
____________

Before JOHN C. KERINS, JILL D. HILL, and GEORGE R. HOSKINS,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject the sole claim in this application. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 The term “Appellant” is used herein to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Eaton
Corporation. Appeal Br. 1.
Appeal 2019-001591
Application 29/547,573

2
THE INVENTION
Appellant’s claimed invention is to an ornamental design for an
electrical outlet. Spec. 1. Figures 5 and 6 of Appellant’s drawings, as filed
on April 12, 2017, are reproduced below:

Figure 5 above is a front elevation view, and Figure 6 above is an
enlargement of the indicated portion of Figure 5, of the claimed electrical
outlet.
THE REJECTION
The Examiner rejects the sole claim of the application under
35 U.S.C. § 103 as being unpatentable over an image identified by the
Examiner as a “Chinese standard socket as shown on Tour-Beijing.com,”
(hereafter “Chinese socket”), in view of “Google Universal 22.5W Dual
Port USB Type-C Charger” as shown on Lesterchan.net (hereafter
“Google”). Final Act. 3.
Appeal 2019-001591
Application 29/547,573

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The Chinese socket (left) and Google (right) are reproduced below:

Illustrated above, on the left, is a front elevation view of the Chinese socket;
and, on the right, a front elevation view of the Google charger.2

ANALYSIS
The Examiner’s position is that the Chinese socket operates as a
Rosen3 reference, i.e., a something in existence, the design characteristics of
which are basically the same as the claimed design. Final Act. 3–4. The
Examiner takes the position, relative to the overall appearance of the
claimed design and that of the Chinese socket, that the claimed design
principally differs in that the elongated features present in the claimed
design have more rounded corners, and that the elongated features in the
claimed design point outward toward the closest horizontal edge. Id. at 4.
The Examiner relies on Google as teaching two elongated features with
rounded corners positioned near a lower edge of a flat rectangular surface,

2 The images are copied from the ones appearing at page 4 of the Final
Action.
3 In re Rosen, 673 F.2d 388 (CCPA 1982).
Appeal 2019-001591
Application 29/547,573

4
and concludes that it would have been obvious to modify the shape of the
Chinese socket elongated features to have rounded ends. Id. at 5. The
Examiner takes the position that the different orientation of the angling of
the elongated features, with the claimed design having the features diverge
from top to bottom and the Chinese socket having the features converge
from top to bottom, “is not significant enough to warrant a patent for the
overall appearance of the claimed design over the prior art.” Id.
Appellant disagrees that Chinese socket constitutes a proper Rosen
reference, arguing, in part, that the convergence of the elongated features in
the Chinese socket and the divergence of the elongated features in the
claimed design contributes to the Chinese socket not having basically the
same design characteristics as the claimed design. Appeal Br. 3–4.
Appellant has the better position. Although the Examiner lists several
design characteristics alleged to be common between the Chinese socket and
the claimed appearance, the Examiner downplays, to too great an extent,
differences, including the above-mentioned convergence/divergence of
elongated features, between the two that render the claimed design
noticeably different in appearance.
The Examiner cites to In re Lapworth4 as support for the position that
what the Examiner regards as only subtle or de minimis differences between
the claimed appearance and the appearance of the Chinese socket are not
sufficient to result in the claimed appearance being patentably distinct. Final
Act. 5, 9. Appellant points out that, in Lapworth, two boat hull designs were
nearly indistinguishable from one another until they were superimposed on

4 451 F.2d 1094 (CCPA 1971).
Appeal 2019-001591
Application 29/547,573

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one another. Reply Br. 6. We agree with Appellant that, unlike the designs
at issue in Lapworth, “the claimed design [at issue here] is immediately
visually distinct from the cited art and there is no need to superimpose
anything with anything else” to appreciate the different overall appearance
of the claimed design from the Chinese socket. Id.
In view of the foregoing, we conclude that the Chinese socket is not a
proper Rosen reference because its design characteristics are not basically
the same as the claimed design, so we do not sustain the rejection of the
claim on appeal as being unpatentable over the Chinese socket and Google.

CONCLUSION

In summary:

Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1 § 103(a) Chinese socket,
Google
1

REVERSED