The Nielsen Company (US), LLC

Patent Trials and Appeals Board

Aug 6, 2021

2020004901 (P.T.A.B. Aug. 6, 2021)

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.
15/668,509 08/03/2017 Mark Richard Cave 20004/81155956US01 8692
81905 7590 08/06/2021
Hanley, Flight & Zimmerman, LLC (Nielsen)
150 S. Wacker Dr. Suite 2200
Chicago, IL 60606
EXAMINER
PATEL, HARSHAD C
ART UNIT PAPER NUMBER
2831
NOTIFICATION DATE DELIVERY MODE
08/06/2021 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):
docketing@hfzlaw.com
jflight@hfzlaw.com
mhanley@hfzlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK RICHARD CAVE and MICHAEL ALAN HICKS
Appeal 2020-004901
Application 15/668,509
Technology Center 2800
Before GEORGE C. BEST, DONNA M. PRAISS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–7 and 10–29. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 In this Decision, we refer to the Specification filed August 3, 2017
(“Spec.”); the Final Office Action dated October 10, 2019 (“Final Act.”); the
Appeal Brief filed March 10, 2020 (“Appeal Br.”); the Examiner’s Answer
dated April 16, 2020 (“Ans.”); and the Reply Brief filed June 10, 2020
(“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as The Nielsen Company, LLC.
Appeal Br. 2.
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Application 15/668,509

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CLAIMED SUBJECT MATTER
The claims are directed to a plug retainer for securing or holding
power cords to an outlet. Spec. ¶ 15. Claim 1, reproduced below with
emphases to highlight disputed limitations, illustrates the claimed subject
matter:
1. A retainer comprising:
a post having a first end to be received by an opening of a
wall plate cover of an outlet and a second end opposite the first
end, at least a portion of the post having a plurality of grooves
positioned between the first end and the second end, the
plurality of grooves forming a retainer-receiving portion; and
a plug retainer to be removably coupled to the post, the
plug retainer to move relative to the post between the first end
of the post and the second end of the post, the plug retainer
including a plurality of flexible tabs protruding from a base of
the plug retainer in a direction along a longitudinal length of the
post, the flexible tabs to slide relative to the plurality of grooves
and over an outermost surface of the retainer-receiving portion
of the post when the plug retainer is moved relative to the
retainer-receiving portion of the post.
Appeal Br. 26 (Claims App.) (emphasis added).
REJECTIONS
Rejection I: Claim 27 is rejected under 35 U.S.C. § 112(b) as
indefinite.
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Rejection II: Claims 1–7 and 10–293 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Barbic4 in view of Gade.5
DISCUSSION
After reviewing the evidence in light of the Appellant’s and the
Examiner’s opposing positions, we determine that the Appellant has
identified reversible error in the Examiner’s rejections. Thus, we do not
sustain the Examiner’s rejections for the reasons expressed in the Appeal
Brief, the Reply Brief, and the reasons set forth below.
Rejection I – Indefiniteness
Claim 27 requires that “the plurality of grooves forms a non-threaded
retainer-receiving portion.” Appeal Br. 32 (Claims App.).
The Examiner rejects claim 27 as indefinite for failing to particularly
point out and distinctly claim the subject matter which the inventor or a joint
inventor regards as the invention. Final Act. 2–3. Specifically, the Examiner
finds that claim 27’s recitation of a non-threaded groove “seems to be
contradictory” because the Examiner determines, based on Appellant’s

3 Claims 27–29 are omitted from the statement of rejection. Claims 27–29,
however, are discussed in the body of the rejection (Final Act. 13–14), and
Appellants recognize that those claims should have been included in the
statement of rejection (Appeal Br. 23–25. We, therefore, consider the
omission harmless error and modify the statement of rejection to include
claims 27–29 for clarity.
4 Barbic, US 4,424,407, issued January 3, 1984.
5 Gade, US 2,290,175, issued July 21, 1942. The Examiner refers to this
reference as “Gadz” in the rejection. Final Act. 3. However, this appears to
be a typographical error as the inventor is listed as Harald F. Gade. We refer
to this reference as “Gade” herein.
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Specification, the plurality of grooves “makes [a] threaded received [sic]
portion and not a non-threaded portion.” Ans. 3.
The statute requires that “[t]he specification shall conclude with one
or more claims particularly pointing out and distinctly claiming the subject
matter which the inventor or a joint inventor regards as the invention.” 35
U.S.C. § 112(b). During prosecution, “‘[a] claim is indefinite when it
contains words or phrases whose meaning is unclear.”’ Ex parte McAward,
Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (quoting In re Packard, 751 F.3d 1307, 1314 (Fed. Cir. 2014)
(per curium)).
Appellant argues that at least Figure 3 of Appellant’s application and
paragraph 19 of its Specification demonstrate that the grooves may be
discrete, non-threaded grooves, and as such one of ordinary skill in the art
would understand the claim language. Appeal Br. 13–14.
Appellant’s argument is persuasive of reversible error. Contrary to the
Examiner’s finding, the claim limitation is not “contradictory” to what is
shown in Appellant’s drawings and discussed in Appellant’s Specification.
Paragraph 19 of Appellant’s Specification discloses a plurality of grooves
(250) formed along the retainer-receiving portion (216) as a “ratcheted post”
that flexible tabs may engage with as the retainer is moved along a length of
the retainer’s post (212). Spec. ¶ 19; Fig. 2 of Appellant’s application; see
also Spec. ¶ 34. The “non-threaded” nature of these grooves (Fig. 2’s
plurality of grooves 250) located at the upper end of the post (Fig. 2’s post
212) is shown in Figure 3 of Appellant’s drawings, reproduced below, as
contrasted with the “threaded screw” (Fig. 2’s fastener 234) located at the
opposing end of the same post (Fig. 2’s post 212). FIGS. 2–3; Spec. ¶ 32.
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Figure 3 of Appellant’s drawings is reproduced below:

Figure 3 above is a cross-section of an embodiment of
Appellant’s plug retainer with “non-threaded” grooves formed
along retainer-receiving portion (216) at the upper end of the post
(212) and a “threaded” fastener (234) at the opposing end of the
same post.
When claim 27 is read in light of Appellant’s Specification and
drawings, one of ordinary skill in the art would understand that the plurality
of grooves (250) formed along the retainer-receiving portion (216) are non-
threaded and would not find any words or phrases of the claim to be unclear.
As such, the claim is not indefinite.
Because Appellant has identified a reversible error, we do not sustain
the rejection of claim 27 under 35 U.S.C. § 112(b) as indefinite.
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Rejection II – Obviousness over Barbic and Gade
The Examiner rejects claims 1–7 and 10–29 under 35 U.S.C. § 103 as
unpatentable over Barbic in view of Gade.
Appellant presents arguments with respect to independent claims 1,
10, 13, 14, and 16, as well as dependent claims 20, 22, 23, 27, and 29.
Appeal Br. 15–36. We focus our discussion on representative claim 1
because each independent claim contains a recitation of the disputed
limitation that the plug retainer, or a portion thereof, slides relative to the
retainer-receiving portion of the post. See 37 C.F.R. § 41.37(c)(1)(iv)
(2019).
The dispositive issue on appeal is whether Gade teaches or suggests a
retainer that includes a post having a retainer-receiving portion and a plug
retainer, where the plug retainer includes “a plurality of flexible tabs
protruding from a base of the plug retainer in a direction along a longitudinal
length of the post, the flexible tabs to slide relative to the plurality of
grooves over an outermost surface of the retainer-receiving portion of the
post when the plug retainer is moved relative to the retainer-receiving
portion of the post” as required by claim 1. Appeal Br. 26 (Claims App.)
(emphasis added). In the Final Action, the Examiner finds that it does,
relying on the segments (1) of Gade’s self-locking nut, as shown in Gade’s
Figure 6 reproduced below, as corresponding to claim 1’s “flexible tabs.”
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Figure 6 above is a top, partial sectional view of Gade’s finished
nut (3) applied to a bolt (7).
During prosecution, an applicant’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id.; see also In
re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983) (“It is axiomatic that, in
proceedings before the PTO, claims in an application are to be given their
broadest reasonable interpretation consistent with the specification and that
claim language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.”).
As Appellant persuasively argues, the Examiner’s rejection relies on
an interpretation of the term “slide” that is inconsistent with Appellant’s
Specification and drawings. Appeal Br. 17.
Although Appellant’s Specification does not explicitly define the term
slide, Appellant’s Specification does use the term slide to describe a
particular type of motion shown in greater detail in Figures 6–9. Spec. ¶¶ 30,
47, 48, Figs. 6–9. As seen in those drawings, Appellant’s plug retainer (214)
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and post (212) are structured so as to enable the plug retainer to move up and
down along the longitudinal axis of the post. The interaction between the
plug retainer (214) and the grooves (250) of the post during this movement
is contrasted directly with that of a screw (fastener 234) and a threaded
opening (210). Spec. ¶ 32, Fig. 2. Thus, an interpretation of slide that
includes the motion of a threaded nut over a threaded screw is inconsistent
with Appellant’s Specification.
The Examiner finds that segments (1) (corresponding to claim 1’s
flexible tabs) of Gade’s self-locking nut
can move in and out and during the operation, flexible tab [sic]
will flex outwardly until the broader portion of the groove, and
once it overcomes the broadest portion it slides up or down to the
next groove of the plurality of groove [sic] and thus slides up and
down . . . .
Ans. 4–5. The Examiner also finds that Gade teaches or suggests that
segments of its self-locking nut flex over an outermost surface of a bolt
because Gade teaches the segments have “a suitable degree of resiliency in
the radial direction consistent with their locking function.” Id. at 6–7 (citing
Gade, col. 1, ll. 47–55, col. 2, ll. 1–4).
The Examiner’s findings misinterpret how Gade’s nut and segments
operate. Gade teaches a method of manufacturing a self-locking nut
including a plurality of segments (1) that extend from a body of the nut (3).
Gade, col. 1, ll. 50–51. The “resiliency” of Gade’s segments exist so the
segments bend inwardly during manufacture. Gade, col. 2, ll. 2–3, 45–52.
Gade teaches that, during manufacture, the segments (1) are inwardly
displaced so that the segments are “permanently set” to constrict the bore (6)
of the nut and obstruct the free passage of the nut onto a bolt. Gade, col. 2,
ll. 45–52. On this record, the Examiner has not identified sufficient evidence
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that Gade’s segments “flex outwardly” as suggested by the Examiner. And,
as Appellant points out, finding that Gade’s segments “flex outwardly” is
inconsistent with Gade’s teachings. See Reply Br. 5–6.
Furthermore, even if Gade’s segments were to flex as suggested by
the Examiner, Gade’s segments do not “slide” as required by claim 1. Gade
teaches a “plug retainer” in the form of a threaded nut that moves along a
threaded bolt or screw when rotated, which the Specification expressly
contrasts with the sliding of the plug retainer over the grooves formed along
the retainer-receiving portion of its post. Spec. ¶ 32. On the record before us,
the Examiner has not identified sufficient evidence that Gade teaches or
suggests “flexible tabs to slide relative to the plurality of grooves and over
an outermost surface of the retainer-receiving portion of the post when the
plug retainer is moved relative to the retainer-receiving portion of the post”
as required by claim 1. Appeal Br. 26 (Claims App.) (emphasis added).
Because Appellant has identified reversible error, we do not sustain
the rejection of claim 1 and claims 2–7, 21, 24, 25, and 27–29 depending
therefrom.
Independent claims 10, 13, 14, and 16 similarly require the plug
retainer “to slide” relative to the post (or in the case of method claim 16,
“sliding the lock of the plug retainer along a retainer-receiving portion of the
post . . .”). For at least the same reasons discussed above, Appellant has
identified a reversible error in the rejection of those claims as well. As such
we do not sustain the rejection of claims 10–20, 22, 23, and 26.
CONCLUSION
The Examiner’s rejections are reversed.
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More specifically, we reverse the Examiner’s rejection of claim 27
under 35 U.S.C. § 112(b), and we reverse the Examiner’s rejection of claims
1–7 and 10–29 under 35 U.S.C. § 103.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
27 112(b) Indefiniteness 27
1–7, 10–29 103 Barbic, Gade 1–7, 10–29
Overall
Outcome
1–7, 10–29

REVERSED