Fuelogics, LLC

Patent Trials and Appeals Board

Feb 10, 2022

2022000438 (P.T.A.B. Feb. 10, 2022)

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. 15/851,598 12/21/2017 Scott Littlefield FUEL-1-1001 5277 177058 7590 02/10/2022 John J. Bamert, Esq. Bamert Regan 113 Cherry St Unit 55215 Seattle, WA 98104 EXAMINER GOLDBERG, IVAN R ART UNIT PAPER NUMBER 3619 NOTIFICATION DATE DELIVERY MODE 02/10/2022 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): Bamert@BamertRegan.com Docketing@BamertRegan.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT LITTLEFIELD and SUSAN LEWIS Appeal 2022-000438 Application 15/851,598 Technology Center 3600 ____________ Before ANTON W. FETTING, JAMES P. CALVE, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-15 and 23-45. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party in interest as Fuelogics, LLC. Appeal Br. 2. Appeal 2022-000438 Application 15/851,598 2 BACKGROUND The Specification discloses that “[t]he present invention relates generally to controlling resource consumption and, more particularly, but not exclusively, to controlling resource consumption based on a comparison of performance feedback and the output of a performance model.” Spec. 1, ll. 8-10. CLAIMS Claims 1, 9, 23, and 39 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method for improving performance criterion in a control session, wherein one or more processors in a network computer perform the method by executing computer readable instructions, the method comprising: obtaining characteristics information associated with an agent; logically associating the characteristics information with the agent in an agent repository, the agent repository logically associating characteristics information and metrics of a plurality of agents with respective ones of the plurality of agents, the agent repository logically associating the plurality of agents with different control sessions; generating one or more outputs based on the characteristics information of the agent and a performance model, wherein the one or more outputs include a predicted expenditure amount; transforming the predicted expenditure amount into a first specific-units amount of a first resource type and a second specific-units amount of a second resource type based on the characteristics information of the agent; transforming the first specific-units amount of the first resource type into a first normalized-units amount of the first resource type; Appeal 2022-000438 Application 15/851,598 3 transforming the second specific-units amount of the second resource type into a second normalized-units amount of the second resource type based on the first normalized-units amount of the first resource type; providing a consumption instruction to a client computer associated with the agent based on the first normalized-units amount of the first resource type and the second normalized-units amount of the second resource type, wherein the consumption instruction is provided to the client computer with a first communication modality; obtaining metrics associated with the agent that are based on the consumption instruction and a monitoring of the agent; logically associating the obtained metrics with the agent in the agent repository; comparing one or more portions of the obtained metrics to the one or more outputs of the performance model; modifying the one or more outputs based on the comparison to increase a correlation between the one or more outputs and the obtained metrics; and providing a modified consumption instruction to the client computer based on the one or more modified outputs, wherein the modified consumption instruction is provided to the client computer with a second communication modality that is different than the first communication modality based on availability of the first and second communication modalities, wherein execution of the computer readable instructions prevents duplicate modified consumption instructions when switching communication modalities. Appeal Br. 37-38. Appeal 2022-000438 Application 15/851,598 4 REJECTIONS 1. The Examiner rejects claims 1-6, 8, 23-28, 30-32, and 35-44 under 35 U.S.C. § 103 as unpatentable over Nissila2 in view of Benefield3 and Publicover.4 2. The Examiner rejects claims 7, 29, and 45 under 35 U.S.C. § 103 as unpatentable over Nissila in view of Benefield, Publicover, and Raviv.5 3. The Examiner rejects claims 9-12, 14, 33, and 34 under 35 U.S.C. § 103 as unpatentable over Nissila in view of Catt,6 Miller-Kovach,7 and Saulet.8 4. The Examiner rejects claim 13 under 35 U.S.C. § 103 as unpatentable over Nissila in view of Catt, Miller-Kovach, Saulet, and Diaz.9 5. The Examiner rejects claim 15 under 35 U.S.C. § 103 as unpatentable over Nissila in view of Catt, Miller-Kovach, Saulet, and Raviv. 6. The Examiner provisionally rejects claims 1-15 and 23-45 on the ground of nonstatutory double patenting as unpatentable over claims 31-35, 37- 43, 45, 53-57, 59-78 of copending Application No. 16/246,806 in view of Nissila, Benefield, Publicover, Catt, Raviv, Saulet, and Miller-Kovach. 2 Nissila et al., US 2005/0004436 A1, pub. Jan. 6, 2005. 3 Benefield et al., US 2018/0374385 A1, pub. Dec. 27, 2018. 4 Publicover et al., US 2017/0201779 A1, pub. July 13, 2017. 5 Raviv et al., WO 2016/065463 A1, pub. May 6, 2016. 6 Catt et al., US 2008/0275348 A1, pub. Nov. 6, 2008. 7 Miller-Kovach et al., US 2015/0285776 A1, pub. Oct. 8, 2015. 8 Saulet, US 2010/0198605 A1, pub. Aug. 5, 2010. 9 Diaz et al., US 5,890,128, iss. Mar. 30, 1999. Appeal 2022-000438 Application 15/851,598 5 DISCUSSION Obviousness of Claims 1-6, 8, 23-28, 30-32, and 35-44 With respect to claim 1, we are persuaded that the Examiner erred in finding that the art of record teaches a method as claimed, at least with respect to the step of “transforming the specifics-units amount of the second resource type into a second normalized-units amount of the second resource type based on the first normalized-units amount of the first resource type.” In rejecting claim 1, the Examiner acknowledges that “Nissila does not explicitly disclose switching the calculation between specific and normalized recommendation outputs and explicitly having predicted expenditure amount transformed into both ‘first’ and ‘second’ resource type.” Final Act. 13. However, the Examiner relies on Benefield as disclosing “transforming a predicted expenditure amount . . . ;” “transforming the first specific units-amount of the first resource type . . . ;” and “transforming the second specific units-amount of the second resource type . . .” Id. at 13-15 (citing Benefield ¶¶ 47- 49, 69, 70, 72, 82, 84). We have reviewed the cited portions of Benefield and agree with Appellant that, without further citation to evidence or explanation, the Examiner has not shown that Benefield teaches transforming a second specific-units amount of a second resource type into a second normalized- units amount that is based on the first normalized-units amount. See Appeal Br. 24. The Examiner explains that Benefield teaches the number of calories allowed in a diet for particular resources, including carbohydrates, fats, and proteins, and that Benefield teaches providing recommend portions for the remaining number of allowed calories and nutritional requirements. Ans. 7 (citing Benefield ¶¶ 48, 69, 72). The Examiner finds that these teachings correspond to the claimed step of transforming the first specific-units Appeal 2022-000438 Application 15/851,598 6 amount into a first normalized-units amount. Id. Regarding the step of transforming the second specific-units amount into a second normalized- unites amount, the Examiner finds that Benefield teaches meal options that are within percentage intakes of carbohydrates, fat and protein and providing a user with remaining calories allowed broken down into portions of resources. Id. (citing Benefield ¶¶ 69, 82). The Examiner explains that Benefield teaches the limitations at issue because Benefield’s system analyzes available meal options based on the dietary plan and remaining types of resources for consumption based on the number of calories that is a mixture of fat, carbohydrates, and protein. Id. at 7-9. However, the Examiner does not explain adequately how Benefield teaches transforming a second specific-units amount of a second resource into a normalized-units amount of that resource and based on the first normalized-units amount of the first resource. The Examiner references a “meal” taught by Benefield that includes a specific breakdown of grams of carbohydrates, fats, and proteins. Although a meal may be considered a normalized-units amount, the individual resources are not provided as normalized units. See Benefield ¶ 69 (identifying particular meals and portions available that the user can consume based on available amounts of resources in a daily diet); ¶ 82 (determining the remaining amounts of calories and resources that may be consumed in a day after a meal). In contrast, the claim requires taking a first specific amount of a resource and transforming it into a normalized amount, e.g. converting grams of fat into servings of fat, and then taking a second specific amount of a resource and transforming into a normalized amount that is based on the first, e.g. calculating allowed grams of protein available based on the serving amount of fat calculated and then transforming to an amount of servings of Appeal 2022-000438 Application 15/851,598 7 protein available. See also Spec. 82 (providing a calculation of a normalized-units needs amount for fat based on normalized-units needs amount for protein and a normalized-units needs amount for carbohydrates). The Examiner has not identified any cited portion of Benefield that recites a step of transforming a second specific-units amount as claimed. Further, we disagree with the Examiner’s indication that this transforming step is achieved merely because “a serving of fat may include protein.” Ans. 6 (quoting Spec. 34, ll. 1-2). The Specification discloses that In some embodiments, specific-units needs amounts may not be converted directly into normalized-units needs because a normalized-unit of one resource may include one or more portions of a normalized-unit of another one or more other resources (for example, a serving of gasoline may include one or more fuel additives, a serving of fat may include protein, or others). Accordingly, in some embodiments, specific-units needs amounts for one or more resource types may be transformed into normalized-units needs amounts for the one or more resource types based on specific-units needs amounts for the one or more resource types and normalized-units needs amounts for one or more other resource types. Spec. 33-34. Contrary to the Examiner’s explanation, we do not read this disclosure as indicating that any transformation of fat to a normalized unit is based on a normalized unit of protein simply because fat may include protein. Rather, this is provided as an explanation regarding why you may base a normalized unit transformation of one resource on another resource. Based on the foregoing, we are persuaded of error in the rejection of independent claim 1. The Examiner relies on the same findings for substantially the same limitations as they appear in independent claims 23 and 39, and thus, we are also persuaded of error in the rejection of those claims for the same reasons. See Final Act. 26-31. Regarding dependent Appeal 2022-000438 Application 15/851,598 8 claims 2-6, 8, 24-28, 30-32, 35-28, and 40-44, the Examiner does not provide any further citation to evidence or explanation that cures the deficiency in the rejection of the independent claims. Accordingly, we do not sustain the rejection of claims 1-6, 8, 23-28, 30-32, and 35-44. Obviousness of Claims 7, 29, and 45 With respect to the rejection of claims 7, 29, and 45, the Examiner does not provide any further evidence or analysis that cures the deficiency in the rejection of the independent claims. See Final Act. 47-50. Accordingly, we also do not sustain this rejection. Obviousness of Claims 9-12, 14, 33, and 34 With respect to claim 9, we are persuaded that the Examiner erred in finding that the art of record teaches a system as claimed, at least with respect to the network computer with instructions for “transforming the specific-units amount of each of the multiple resource types into a normalized-units amount of each of the multiple resource types based on one or more normalized-units amounts of one or more other resource types.” In rejecting claim 9, the Examiner acknowledges that “Nissila and Catt do not explicitly disclose switching the calculation between specific and normalized recommendation outputs.” Final Act. 61. The Examiner relies on Miller-Kovach as teaching “transforming the predicted expenditure amount into specific-units amounts of ‘multiple resource types’ based on the characteristics information of the agent” and “transforming the specific-units amount of each of the multiple resource types into a normalized-units amount of each of the multiple resource types based on one or more normalized-units amounts of one or more other resource types.” Id. at 61- 62 (citing Miller-Kovach ¶¶ 40, 58, 59, 66, 82, 91, 99, 105, 161). Further, the Examiner indicates that the multiple resources relied upon are the protein Appeal 2022-000438 Application 15/851,598 9 content, carbohydrate content, and fat content of a food. Id. at 61. However, the Examiner does not explain adequately how the cited evidence teaches a transformation as claimed. The Examiner fails to explain how the cited portions teach transforming a specific-units amount of a resource based on one or more normalized-units amounts of one or more other resources. The cited evidence teaches calculating food energy data (Miller-Kovach ¶¶ 59, 66), “simplified whole number data for a candidate food serving” based on food energy data (id. ¶ 82), and healthfulness data (id. ¶¶ 91, 99, 105). Miller- Kovach further teaches that a consumer may consider this data along with further nutritional qualities when determining “whether to ingest a candidate food serving.” Id. ¶ 161. It is not clear how such evidence teaches the claim limitation at issue. Miller appears to teach calculating various quantities based on resource content. For example, food energy data may be calculated based on protein, carbohydrate, and fat energy data. But Miller-Kovach does not disclose providing normalized-units amount of the resources or providing any normalized-units amount of one resource based on another. In the Answer, the Examiner further explains that Miller-Kovach teaches that “‘food energy data’ is based on the total food energy data, protein data, and dietary fiber for a candidate food serving. Thus, the protein is impacted by the amount of fiber.” Ans. 12 (citing Miller-Kovach ¶ 66). In paragraph 66, Miller-Kovach teaches the calculation of food energy data for a serving of food based on protein data and fiber data. It is not clear to us how this shows that “protein is impacted by the amount of fiber.” Because the calculation is for a particular serving of food, one cannot adjust the fiber content in order to impact the protein content of the food, as the Examiner appears to indicate. Further, even if this were possible, the Appeal 2022-000438 Application 15/851,598 10 Examiner still has not shown how Miller-Kovach teaches the limitation at issue, i.e. this does not provide a teaching of transforming a specific-units amount of a resource into a normalized amount based on another resource. Based on the foregoing, we are persuaded of error in the rejection of independent claim 9. Regarding dependent claims 10-12, 14, 33, and 34, the Examiner does not provide any further citation to evidence or explanation that cures the deficiency in the rejection of independent claim 9. Accordingly, we do not sustain the rejection of claims 9-12, 14, 33, and 34. Obviousness of Claims 13 and 15 With respect to the rejections of claims 13 and 15, the Examiner does not provide any further evidence or analysis that cures the deficiency in the rejection of the independent claim 9. See Final Act. 77-83. Accordingly, we also do not sustain these rejections. Double Patenting With respect to the double patenting rejection, the Examiner explains that the rejection is based on the same findings with respect to the prior art relied upon in the obviousness rejections. See Ans. 3-5. However, the Examiner does not provide further evidence or explanation that would cure the deficiencies in the art identified and discussed above. Accordingly, for the reasons discussed, we also do not sustain the double patenting rejection. CONCLUSION We REVERSE the rejections of claims 1-15 and 23-45. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1-6, 8, 23- 28, 30-32, 35-44 103 Nissila, Benefield, Publicover 1-6, 8, 23-28, Appeal 2022-000438 Application 15/851,598 11 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 30-32, 35-44 7, 29, 45 103 Nissila, Benefield, Publicover, Raviv 7, 29, 45 9-12, 14, 33, 34 103 Nissila, Catt, Miller-Kovach, Saulet 9-12, 14, 33, 34 13 103 Nissila, Catt, Miller-Kovach, Saulet, Diaz 13 15 103 Nissila, Catt, Miller-Kovach, Saulet, Raviv 15 1-15, 23-45 Provisional Nonstatutory Double Patenting Appl. No. 16/246,806, Nissila, Benefield, Publicover, Catt, Raviv, Saulet, Miller-Kovach 1-15, 23-45 Overall Outcome 1-15, 23-45 REVERSED