Cushing, Vincent J. et al.Download PDFPatent Trials and Appeals BoardMay 26, 202013405153 - (R) (P.T.A.B. May. 26, 2020) Copy Citation 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. 13/405,153 02/24/2012 Vincent J. Cushing A202884 6703 23373 7590 05/26/2020 SUGHRUE MION, PLLC 2000 PENNSYLVANIA AVENUE, N.W. SUITE 900 WASHINGTON, DC 20006 EXAMINER KONERU, SUJAY ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 05/26/2020 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): PPROCESSING@SUGHRUE.COM USPTO@sughrue.com sughrue@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VINCENT J. CUSHING and GREGOR P. HENZE Appeal 2019-001268 Application 13/405,153 Technology Center 3600 Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and MICHAEL A. VALEK, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This is a request for rehearing under 37 C.F.R. § 41.79 (“Req. Reh’g”) of the Decision on Appeal entered January 15, 2020 (“Dec.”). We have considered Appellant’s arguments, but are not persuaded to change the outcome of the Decision with respect to the rejection under 35 U.S.C. § 103. We do, however, grant Appellant’s request to designate our prior Decision affirming the rejection under 35 U.S.C. § 103 as a new ground of rejection under 37 C.F.R. § 41.50(b). Appeal 2019-001268 Application 13/405,153 2 REPRESENTATIVE CLAIM Appellant requests a rehearing of the Decision affirming the rejection of claims 21–31 and 37–58 as obvious in view Drees, Brickfield, and Crabtree. Dec. 2. Claim 21 is illustrative and is reproduced below (bracketed numbers have been added for reference to the steps recited in the claim): 21. A method of managing energy consumption in a portfolio of facilities, each facility having at least one controllable energy- consuming component and at least one energy response attribute, the method comprising the steps of: [1] unbundling energy response attributes from each of the facilities; [2] rebundling the unbundled attributes into aggregations, with at least one said aggregation including attributes from plural facilities and representing a synthetic resource; [3] predicting energy consumptive behavior of said synthetic resource in response to possible future stimuli and based on said attributes included in said synthetic resource; and [4] controlling the components of each building, via a processor-based control system, to support deployment of said synthetic resource in at least one market; [5] wherein at least one of said unbundling and rebundling steps are optimized with respect to at least one objective. DISCUSSION Rejected independent claim 21 is directed to a method of “managing energy consumption in a portfolio of facilities, each facility having at least one controllable energy consuming component and at least one energy response attribute.” The claim requires unbundling and rebundling of “energy response attributes” (steps [1] and [2]), predicting energy consumptive behavior (step [3]), controlling the components of each building (a facility) (step [4]), where “at least one of said unbundling and Appeal 2019-001268 Application 13/405,153 3 rebundling steps are optimized with respect to at least one objective” (step [5]). In the Decision on Appeal, the obviousness rejection of the claims over Drees, Brickfield, and Crabtree was affirmed. The Examiner cited Drees for describing substantially all the steps of the claimed method. Dec. 3. The Examiner further relied on Brickfield for disclosing rebundling of energy response attributes as step [2]. Id. Crabtree was also cited by the Examiner for disclosing steps [2]–[4] of claim 21. Id. New ground of rejection: Appellant states that the Decision “proceeded to support the examiner-stated rejection with various detailed rationales not found in the rejection as stated, sufficiently widespread and fundamental as to change the underlying rationale for the rejection, and constitute a new ground of rejection.” Req. Reh’g 2. Appellant states that the Decision “presents a detailed analysis of various parts of Drees that the examiner never referred to and never alleged as support for his rejection.” Id. at 3. Appellant states that “from the last six lines of page 9 to the first six lines of page 13, and in the discussion of Brickfield at pages 17-18, the Board presents a discussion of Brickfield that is not found anywhere in the arguments of the examiner in the final Office action.” Id. Appellant further states that it may amend the claims “to obviate the positons now taken by the Board.” Id. Upon reflection, we grant Appellant’s request to designate our prior Decision affirming the rejection under 35 U.S.C. § 103 a new ground of rejection under 37 C.F.R. § 41.50(b). Appeal 2019-001268 Application 13/405,153 4 Energy response attribute Appellant argues that the term “energy response attribute” as recited in the claim was misconstrued by the Examiner. Req. Reh’g 2. We disagree. The Decision addresses the proper interpretation of this term and agreed with Examiner’s interpretation that an energy response to a change in an HVAC setpoint meets the limitation of an energy response attribute. Dec. 5–6. The Decision cited paragraphs 38 and 40 of Drees to support this conclusion; the Decision also referred to rejected dependent claim 29. Id. The Examiner also cited paragraphs 38 and 40, inter alia, of Drees as meeting the “energy response attribute.” Final Act. 14 (in discussing claim 29). Accordingly, we find no difference in the way the term “energy response attribute” was construed by the Examiner and in the Decision. Because Appellant had challenged the Examiner’s interpretation of this term (Appeal Br. 15–17), the Decision responded by explaining how the term should be construed in light of the Specification, but we did not interpret the term any differently than did the Examiner. Unbundling and rebundling of “energy response attributes” Steps [1] and [2] of claim 21 requires unbundling and rebundling of “energy response attributes.” Appellant argues that there is “no mention . . . of unbundling the thermal energy storage attributes of multiple buildings, nor is there any discussion of combining these unbundled attributes into an aggregation representing a synthetic resource” in paragraphs 91 and 92 of Drees cited in the Board Decision. Req. Reh’g 4–5. This argument is not persuasive. The Decision on Appeal explained how paragraphs 91 and 92 of Drees describes managing subsystems of a building together, which the Decision determined meets the claimed Appeal 2019-001268 Application 13/405,153 5 limitation “rebundling” “attributes into aggregations.” Dec. 17. The Decision reasoned that because the subsystems are bundled together, “they necessarily were unbundled from the building and then rebundled in a different grouping to control their performance.” Id. See also Dec. 10–12 for the same reasoning based on Brickfield’s disclosure. Appellant did not identify a defect in this rationale. The claim requires in step [2] that the aggregations are rebundled into a “synthetic resource.” The Decision explained, citing to the Specification what a “synthetic resource” means, namely, “an aggregation of attributes.” Dec. 13. Each of Drees, Brickfield, and Crabtree were found in the Decision to describe aggregated attributes, therefore meeting the claim limitation. Dec. 9–10, 13, 17. Appellant did not identify a defect in this fact-finding nor reasoning. Step [3] of claim 21 Step [3] of claim 21 recites: predicting energy consumptive behavior of said synthetic resource in response to possible future stimuli and based on said attributes included in said synthetic resource. The Decision cited the Examiner’s discussion of Crabtree as disclosing this step, and stated that “Appellant did not identify a defect in Crabtree’s disclosure nor the Examiner’s reasoning.” Dec. 15. Appellant did not further address this issue in the Request for Rehearing. The Decision also cited disclosure in Brickfield for step [3] of claim 21. Dec. 8. Appellant states that the Decision is incorrect because Brickfield at paragraph 109 is predicting energy consumptive behavior of a building in response to possible future stimuli, but is not predicting energy Appeal 2019-001268 Application 13/405,153 6 consumptive behavior of a synthetic resource in response to possible future stimuli, where a synthetic resource is something represented by an aggregation of energy response attributes that have been unbundled from a plurality of buildings. Req. Reh’g 5. This argument does not persuade us that we misapprehended a point or made an error in the Decision. For clarity, paragraph 109 of Brickfield is reproduced below: Building managers, financial managers, energy managers, and/or others via browser-based user interface 27 may view information that would be of interest to them. For example, a building manager may use the system of FIG. 5 to monitor the current state of devices 11, 11A, 11B in the buildings 10, 10A, 10B. Building managers can see the temperature setting of air- conditioners, the consumption of chillers, the speed of fans, etc. The building managers can also optionally simulate one or more “what if” scenarios, using the intelligent agents, to predict the effect of control actions on the energy bill and the comfort in the building. Building managers optionally may manipulate the parameters of the intelligent agents, such as by constraining the temperature band used by a “supply air rest” agent. The building manager no longer needs to control individual devices (as he would conventionally do) because the intelligent use of energy system of FIG. 5 is “goal based”. The manager gives the system a goal (such as to save 40 KW in the next two hours) and the intelligent use of energy system of FIG. 5 determines how to best achieve the goal. A building manager can rely on and use the intelligent agents like highly specialized, 24x7 staff members, switching them on or off, or giving them different goals to accomplish. Brickfield ¶ 109 (emphasis added). Brickfield describes, in the paragraph reproduced above, monitoring the state of “devices 11, 11A, 11B in the buildings 10, 10A, 10B.” Id. Brickfield further explains that building managers “can see the temperature Appeal 2019-001268 Application 13/405,153 7 setting of air-conditioners, the consumption of chillers, the speed of fans, etc.” Id. Brickfield describes using intelligent agents to implement control actions to achieve energy goals. Id. In our opinion, this disclosure in Brickfield teaches, and reasonably suggests, that specific devices (“devices 11, 11A, 11B,” such as air-conditioners, chillers, or fans, can be unbundled from the buildings (“buildings 10, 10A, 10B”) and rebundled as an aggregate and then controlled by the “intelligent agents” to achieve an energy goal (“Building managers optionally may manipulate the parameters of the intelligent agents, such as by constraining the temperature band used by a ‘supply air rest’ agent.”). This reasoning is supported by Brickfield’s disclosure in paragraphs 102: The real-time queries and/or commands formulated by the data processing or computer system 25 are communicated in real- time via the network (such as the Internet) to the respective protocol drivers 14, 14A, 14B which leads to devices 11, 11A, 11B being controlled in an overall energy use reducing manner but with minimized discomfort or inconvenience to occupants or users of buildings 10, 10A, 10B. Discomfort or inconvenience to occupants or users of buildings 10, 10A, 10B is considered and included in the data processing or computer system 25 so that a particular energy-using device in the plurality of devices 11, 11A, l1B will not be curtailed in its energy use in a manner that would cause discomfort or negative impact. Thus, certain energy-using devices (such as computer equipment, hospital equipment, etc.) are treated differentially and intelligently so as not to be subjected to energy curtailment in the same manner as other energy-using devices, while other energy-using devices that are otherwise identical but in different buildings may be subjected to different energy curtailment based on time of day and occupancy or the like in the respective buildings. Brickfield ¶ 102. Appeal 2019-001268 Application 13/405,153 8 It is clear from the above-reproduced passages that Brickfield is describing controlling devices (11, 11A, 11B) in multiple buildings (10, 10A, 10B), and thus is “unbundling energy response attributes from each of the facilities” because the energy attributes of each device are separated from the building and then grouped together in an aggregate to be controlled differently than other devices in the buildings (“certain energy-using devices (such as computer equipment, hospital equipment, etc.) are treated differentially and intelligently so as not to be subjected to energy curtailment in the same manner as other energy-using devices”). This is discussed in the Decision on pages 10–12. Crabtree is also cited by the Examiner for these limitations. Dec. 13– 14 (see discussion of paragraphs 78 and 88 of Crabtree). Appellant did not address Crabtree’s disclosure in the Request for Rehearing. Step [4] of claim 21 With respect to step [4] of claim 21, Appellant further argues that “aggregation of attributes from different buildings to represent a deployable synthetic resource is not mentioned in the art” and therefore “there can therefore be no teaching in the art as to the better allocation of resources and optimization of transmission and distribution of the grid system and improvement in management of markets that might have resulted from use of such a synthetic resource.” Req. Reh’g 5. The Decision provides evidence, as discussed above, that the concept of unbundling energy response attributes from buildings and bundling them together is described in at least each of Brickfield and Crabtree. Dec. 9–13. While the terms used in the claims are different, it is clear that the cited publications recognized the benefit of controlling different devices in the Appeal 2019-001268 Application 13/405,153 9 buildings to achieve an energy goal. Appellant has not persuasively identified an error in the Decision with regard to these findings. As to the “use of such a synthetic resource,” we assume that appellant is referring to step [4] of claim 21 of “controlling the components of each building, via a processor-based control system, to support deployment of said synthetic resource in at least one market.” The Decision found that the Examiner correctly applied Drees in meeting this limitation. The Decision cited paragraph 69 of Drees, which is reproduced below: The smart building manager 106 or the DR layer 112 may further include control logic for purchasing energy, selling energy, or otherwise participating in a real-time or near real- time energy market or auction. For example, if energy is predicted to be expensive during a time when the DR layer 112 determines it can shed extra load or perhaps even enter a net- positive energy state using energy generated by solar arrays, or other energy sources of the building or campus, the DR layer 112 may offer units of energy during that period for sale back to the smart grid (e.g., directly to the utility, to another purchaser, in exchange for carbon credits, etc.). Drees ¶ 69. Drees expressly describes deploying energy from the building in a market (“the DR layer 112 may offer units of energy during that period for sale back to the smart grid (e.g., directly to the utility, to another purchaser, in exchange for carbon credits, etc”). Id. The Decision acknowledged that this specific disclosure does not “describe deployment of a synthetic resource from aggregated energy response attributes from multiple facilities as required by the claim,” but explained that paragraph 91 of Drees discloses managing subsystems in multiple buildings (“In such an example, the building subsystems shown . . . may be a collection of building subsystems for multiple buildings in a campus”). Dec. 16. Once the skilled worker is Appeal 2019-001268 Application 13/405,153 10 aware of this teaching from Drees that energy from a building may be deployed back to market, it would have been obvious, as explained by the Examiner, that the rebundled energy response attributes described in Brickfield and Crabtree could also be deployed to achieve better allocation of resources. Final Act. 11. Appellant did not adequately explain why this reasoning is defective. Claim 27, 40, and 51 Appellant states the Decision overlooked the requirement of claims 27, 40, and 51 that “the selection of the market in which to deploy and when to deploy is part of the optimization step, inherently requiring that the market and timing selection be based on some sort of optimization criteria.” Req. Reh’g 6. The claims recite “wherein optimizing at least one of said unbundling and rebundling steps comprises selecting which of the markets in which to deploy said synthetic resource and further selecting when said synthetic resource is deployed.” The claims require that a market and resource is selected to be deployed. Appellant did not explain what language in the claim “inherently” invokes “timing” as an optimization criteria. Consequently, we consider Appellant’s argument unavailing. Claims 28, 41, and 52 Appellant states that claims 28, 41 and 52 require “optimization over multiple time periods” and that if “the cited art teaches optimization over Appeal 2019-001268 Application 13/405,153 11 some period (which has not been shown), there is certainly no suggestion of optimization over multiple time periods.” Req. Reh’g 6. This argument is not persuasive. The claims use the term “multiple time horizons.” The Decision interpreted that phrase and explained how it is met by Drees. Dec. 25–26. Appellant did not explain why this reasoning is inadequate. Summary Appellant did not identify any misapprehended or overlooked points. 37 C.F.R. § 41.52(a)(1). CONCLUSION Outcome of Decision on Rehearing: Claims 35 U.S.C. § Reference(s)/Basis Denied Granted 21–31, 37–58 103 Drees, Brickfield, Crabtree 21–31, 37–58 Final Outcome of Appeal after Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 21–31, 37–58 103 Drees, Brickfield, Crabtree 21–31, 37–58 21–31, 37–58 21–31, 37–58 112 Written description 21–31, 37–58 Overall Outcome 21–31, 37–58 21–31, 37–58 Appeal 2019-001268 Application 13/405,153 12 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under §41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the MPEP § 1214.01. Appeal 2019-001268 Application 13/405,153 13 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). See 37 C.F.R. §§ 41.50(f), 41.52(b). GRANTED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation