PATENT OWNER
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`PATENT OWNER
`EXHIBIT 2012
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`EXHIBIT 20 1 2
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`PATENT OWNER
`EXHIBIT 2012
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`EXHIBIT 20 1 2
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`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.
`
`10/662,940
`
`09/16/2003
`
`Kimball C. Chen
`
`64171.000002
`
`2033
`
`03/03/2011
`7590
`21967
`HUNTON & WILLIAMS LLP
`INTELLECTUAL PROPERTY DEPARTMENT
`1900 K STREET, N.W.
`SUITE 1200
`WASHINGTON, DC 20006-1109
`
`EXAMINER
`
`BORISSOV, IGOR N
`
`ART UNIT
`
`PAPER NUMBER
`
`3628
`
`MAIL DATE
`
`03/03/2011
`
`DELIVERY MODE
`
`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 BOARD OF PATENT APPEALS
`AND INTERFERENCES
`____________
`
`Ex parte KIMBALL C. CHEN, ALEXANDER W. EVANS, and DANIEL
`E. SHPRECHER
`____________
`
`Appeal 2010-000055
`Application 10/662,940
`Technology Center 3600
`____________
`
`
`
`Before, HUBERT C. LORIN, ANTON W. FETTING and JOSEPH A.
`FISCHETTI, Administrative Patent Judges.
`
`FISCHETTI, Administrative Patent Judge.
`
`
`DECISION ON APPEAL
`
`
`
`The two-month time period for filing an appeal or commencing a civil
`action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
`as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
`(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
`mode) shown on the PTOL-90A cover letter attached to this decision.
`
`
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`
`STATEMENT OF THE CASE
`Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
`final rejection of claims 1-3, 7, 8, 13, 15, 17, 19, 152, 180-182, 186, 187,
`192, 194, 196, 198, and 331. Claims 4-6, 9-12, 14, 16, 18, 20-151, 153-179,
`183-185, 188-191, 193, 195, 197, 199-330, and 332-432 have been
`withdrawn. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
`An oral hearing was held on January 20, 2011.
`
`
`SUMMARY OF DECISION
`
`We AFFIRM.
`
`
`THE INVENTION
`Appellants claim a system and method for controlling, monitoring and
`managing remote devices for reducing demand/consumption to resource
`supply based on user defined data. (Specification 1: 15-19).
`Claim 1, reproduced below, is representative of the subject matter on
`appeal.
`
`
`Claim 1. (Previously Presented) A method for controlling one
`or more of resource-consumption and resource-production
`associated with a plurality of remote devices, the
`method comprising the steps of:
`
`
`automatically generating at least one informational message at a
`central server responsive to one or more of resource-
`consumption by, resource-production by, operating
`characteristics of, and operational state of at least one device of
`
`2
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`
`the plurality of remote devices; and
`transmitting the at least one informational message to at least
`one communication device, where the at least one
`communication device initiates at least one action for providing
`a change of one or more of resource-consumption by, resource-
`production by, operating characteristics of, and operational state
`of one or more of the following: a) the at least one device of the
`plurality of remote devices, b) one or more second devices of
`the plurality of remote devices, wherein the one or more second
`devices is different from the at least one device and c) one or
`more devices of a second plurality of remote devices, wherein
`the second plurality of remote devices is different from the
`plurality of remote devices.
`
`
`
`THE REJECTION
`The Examiner relies upon the following as evidence of
`unpatentability:
`US 5,544,036
`Brown
`US 6,178,362 B1
`Woolard
`
`
`The following rejection is before us for review.
`
`Aug. 6, 1996
`Jan. 23, 2001
`
`
`The Examiner rejected claims 1-3, 7, 8, 13, 15, 17, 19, 152, 180-182,
`186, 187, 192, 194, 196, 198, and 331 under 35 U.S.C. § 103(a) as being
`unpatentable over Brown in view of Woolard.
`
`ISSUE
`Did the Examiner err in rejecting claims 1-3, 7, 8, 13, 15, 17, 19, 152,
`180-182, 186, 187, 192, 194, 196, 198, and 331 on appeal as being
`unpatentable under 35 U.S.C. § 103(a) over Brown in view of Woolard on
`the grounds that a person with ordinary skill in the art would understand that
`3
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`the command center computer 24 in Brown automatically provides signals to
`the transmitter 20?
`
`
`
`
`
`FINDINGS OF FACT
`
`
`
`
`
`We find the following facts by a preponderance of the evidence:
`1. Brown discloses that the devices are controlled by “programmed
`data [which] is normally generated by customer command center computer
`22 and transmitted to controllers 14 as paging message signals by transmitter
`20….” (Col. 3, ll. 57-60).
`2. Brown further discloses:
`… [I]n some instances, the "on" signals from
`controller 14 merely permits the appliance to turn
`on if other conditions are present. For example,
`the water heater control "on" signal permits more
`hot water to be generated, but the thermostat
`associated with the water heater must still indicate
`that hot water is needed. On the other hand, the
`"off" signal will generally disable the appliance
`from being on, regardless of the setting of other
`controls associated by the appliance.
`(Col. 3, ll.17-25).
`3. Brown neither discloses nor infers any human intervention involved
`in generating and transmitting programmed data by a customer command
`center computer 22.
`
`4. Appellants’ Specification does not specifically define the term
`automatically, nor does it utilize the term contrary to its customary meaning.
`
`4
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`
`5. The ordinary and customary definition of the term automatic as
`defined by Merriam Webster’s Collegiate Dictionary is: “done or produced
`as if by a machine”. (http://www.merriam- webster.com
`/dictionary/automatic).
`6. Brown discloses “[i]n certain instances, the energy management
`and automation functions programmed by the user may be overridden by the
`utility company when it is necessary to reduce the consumption in a
`particular area. (Col. 4, ll. 4-7).
`
`
`ANALYSIS
`We affirm the rejection of claims 1-3, 7, 8, 13, 15, 17, 19, 152, 180-
`
`182, 186, 187, 192, 194, 196, 198, and 331 under 35 U.S.C. § 103(a).
`
`Appellants’ arguments against each of independent claims 1 and 180
`are based on perceived deficiencies of Brown. Inasmuch as Appellants raise
`the same issues with respect to each of these claims, we discuss them
`together, addressing each of Appellants’ arguments in turn.
`
`Appellants argue that “[a]t best, Brown discloses a one way
`communication channel for sending paging signals from transmitter 20 to
`various controllers 14…. [and] nowhere does Brown disclose, or even
`suggest, that the signals are automatically generated by the utility command
`center computer 24.” (Appeal Br. 8-9).
`
`We disagree with Appellants because we find that in Brown,
`programmed data is normally generated by a customer command center
`computer 22 and is transmitted to home controllers 14 as paging message
`
`5
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`
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`Appeal 2010-000055
`Application 10/662,940
`
`signals by a transmitter 20 (FF 1). Brown neither, discloses or infers, any
`human intervention involved in generating and transmitting such
`programmed data by a customer command center computer 22 (FF 1). The
`claims only generally require that the at least one informational message at a
`central server be responsive to the operational state of a device. We thus
`find that because the customer command center computer 22 is programmed
`to initiate paging messages at given times in response to ON/OFF conditions
`of a device, it in fact responds to an operational state and operating
`characteristics. This is because the ON or OFF modes are states of working
`operation, and because the messages are tailored for a given appliance, they
`thus respond to the characteristics of the given appliance.
`
`We further find that Appellants’ Specification does not specifically
`define the term automatically, nor does it utilize the term contrary to its
`customary meaning. (FF 4) The ordinary and customary definition of
`automatic is “done or produced as if by a machine”. (FF 5) As found, supra,
`in Brown, the informational message generated and transmitted by the
`customer command center computer 22 contains both operational state and
`operating characteristics data which are generated and transmitted to the
`device without direct human involvement, except for initial programming
`(FF 1). As such, we find that Brown discloses automatically generating and
`transmitting at least one informational message at a central server responsive
`to operating characteristics of, and operational state of a device because the
`generating and transmitting steps are automatically produced by operation of
`a machine, i.e., the customer command center computer 22.
`
`6
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`Appellants next argue that Brown teaches away because “messages
`
`are used by the utility company to assist it in more equitably reducing power
`consumption under circumstances when the potential demand for power
`exceeds the ability of the utility company to generate power...(emphasis
`original).” (Appeal Br. 10).
`We disagree with Appellants because we find that Brown does not
`actually teach away from every aspect of all power control systems. See In
`re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). We find instead that Brown
`discloses this power reducing scenario only “in certain instances,” (FF 6)
`and thus in the normal course of operation, the control system in Brown
`operates according to the requirements of the claims, as discussed supra.
`Claims 3 and 182.
`Representative claim 3 recites in pertinent part, receiving at least one
`command at the central server, wherein the at least one command is related
`to controlling the at least one device and wherein the at least one
`informational message is generated based on the at least one command.
`Appellant argues that “[t]here is nothing in Woolard that provides any
`teaching or suggestion that an information message is generated based on the
`at least one command.” (Appeal Br. 12). We find this argument
`unpersuasive because as discussed, supra, Brown explicitly discloses an
`information message, namely the paging message, is generated by the
`customer command center computer 22 based on the at least one command
`which is inputted as programmed instructions. Accordingly, we sustain the
`rejection, finding Woolard cumulative to the rejection.
`
`7
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`
`Claims 13 and 192
`Representative claim 13 recites in pertinent part wherein the at least
`one command is generated in accordance with a user profile.
`Appellants argue that Woolard “…merely discloses a site
`configuration function that permits the user to generate a site map for a
`newly opened facility which is going to be managed by the apparatus 26.”
`(Appeal Br. 14).
`We find this argument unpersuasive because as discussed, supra,
`Brown explicitly discloses an information message, namely, the paging
`message, which is generated by the customer command center computer 22
`based on the at least one command which is inputted as programmed
`instructions. We interpret the programmed instructions resident in memory
`to be a user profile, since like a profile, the instructions are inputted by the
`user according to a desired mode of operation. Accordingly, we sustain the
`rejection, finding again Woolard cumulative to the rejection.
`Appellants’ arguments to claims 2, 7, 15, 17, 19, 152, 181, 186, 187,
`194, 196, 198, and 331 are not persuasive because they are statements
`merely repeating the claim elements. A statement which merely points out
`what a claim recites will not be considered an argument for separate
`patentability of the claim. See, 37 C.F.R. § 41.37 (c)(1)(vii) (2004)
`CONCLUSIONS OF LAW
`We conclude the Examiner did not err in rejecting claims 1-3, 7, 8, 13,
`15, 17, 19, 152, 180-182, 186, 187, 192, 194, 196, 198, and 331 under 35
`U.S.C. § 103(a) as being unpatentable over Brown in view of Woolard.
`
`8
`
`
`
`Appeal 2010-000055
`Application 10/662,940
`
`
`DECISION
`The decision of the Examiner to reject claims 1-3, 7, 8, 13, 15, 17, 19,
`152, 180-182, 186, 187, 192, 194, 196, 198, and 331 is Affirmed.
`
`AFFIRMED
`
`
`
`MP
`
`HUNTON & WILLIAMS LLP
`INTELLECTUAL PROPERTY DEPARTMENT
`1900 K STREET, N.W.
`SUITE 1200
`WASHINGTON DC 20006-1109
`
`9
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