Ex Parte Fornage

Patent Trials and Appeals Board

Jul 11, 2014

12229622 - (D) (P.T.A.B. Jul. 11, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARTIN FORNAGE
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Appeal 2012-003162
Application 12/229,6221
Technology Center 2800
____________

Before ROMULO H. DELMENDO, MARK NAGUMO, and
N. WHITNEY WILSON, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant seeks our review pursuant to 35 U.S.C. § 134(a) of a
final rejection of claims 1-27. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART and REVERSE-IN-PART.

BACKGROUND
The invention relates generally to an apparatus and method for
detecting an impairment in a solar array. Specification (“Spec.”) ¶ 2. The
Specification explains the invention, as follows:

1 According to the Appellant, the real party in interest is Enphase Energy,
Inc. Appeal Brief filed April 21, 2011 (“App. Br.”) 3.

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The apparatus comprises an impairment detection module for
performing a comparison of a power production profile and at
least one reference profile, wherein the power production
profile and the at least one reference profile are for at least one
of the solar array, at least one subarray of the solar array, or at
least one solar panel of the solar array. The apparatus
determines, based on the comparison, whether the impairment
exists.

Id. ¶ 6.
Representative claim 1 is reproduced below:
1. An apparatus for detecting an impairment of a solar
array, comprising:
an impairment detection module for performing a
comparison of a power production profile and at least one
reference profile and determining, based on the comparison,
whether the impairment exists, wherein the power production
profile and the at least one reference profile each correspond to
a same at least one of the solar array, at least one solar subarray
of the solar array, or at least one solar panel of the solar array,
and wherein the power production profile and the at least one
reference profile are graphical profiles that depict power
production over time.
App. Br. 21 (Claims App’x.)
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
I. Claims 1-4, 7-11, 14-16, and 18-20 as unpatentable over
Thompson2 and Chou;3

2 U.S. Patent Application Publication 2008/0272279 A1 (published
November 6, 2008).
3 Dexin Li & Pai H. Chou, Maximizing Efficiency of Solar-Powered Systems
by Load Matching, ISLPED ’04 162-167 (2004) (referred to as “Chou” in the
Examiner’s Answer).
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II. Claims 5, 6, 12, 13, 17, and 21-26 as unpatentable over
Thompson, Chou, and Takehara;4 and
III. Claim 27 as unpatentable over Thompson, Chou, Takehara, and
Forth.5
Examiner’s Answer entered August 8, 2011 (“Ans.”) 4-24.

DISCUSSION
I.
With respect to Rejection I, the Appeal Brief provides arguments
under separate subheadings labeled “A” through “D.” App. Br. 7-14. We
address a claim individually to the extent that the Appeal Brief includes
argument(s) in support of the separate patentability of the claim pursuant to
37 C.F.R. § 41.37(c)(1)(vii). Therefore, unless separately argued within the
meaning of the rule, the rejected claims stand or fall with claim 1, which we
select as representative.

Claim 1:
The Examiner found that Thompson describes an apparatus for
detecting impairment in a solar cell array. Ans. 4-5. The Examiner found,
however, that Thompson does not describe the limitation “wherein the
power production profile and the at least one reference profile are graphical
profiles that depict power production over time” (emphasis added), as
recited in claim 1. Id. at 5. To account for this difference, the Examiner
relied on Chou, which was found to teach a “power model of solar cells

4 U.S. Patent 5,669,987 (issued September 23, 1997).
5 U.S. Patent 6,961,641 B1 (issued November 1, 2005).
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where power production profile and light intensity profile are plotted in [a]
graphical representation to better characterize the maximum efficiency that
would be attainable given certain conditions . . . .” Id. (internal citations
omitted.) Based on these findings, the Examiner concluded that it would
have been obvious to a person of ordinary skill in the art to implement a
comparison of a graphical profile of power production over time against a
graphical profile of a reference power production over time in Thompson for
the purpose of detecting a deviation (i.e., an impairment condition). Id.
Appellant contends that the combination of Thompson and Chou may
disclose or suggest comparing discrete values of power-related parameters
but not a comparison of a power production profile and at least one reference
profile where both profiles are graphical profiles depicting power production
over time, as required by claim 1. App. Br. 8.
Thus, the issue arising from these contentions is whether the
collective teachings of the prior art references would have prompted a
person of ordinary skill in the art to provide an apparatus for monitoring the
performance of Thompson’s solar cell array in which the apparatus
compares a power production over time profile in graphical form against a
reference power production over time profile in graphical form, as required
by claim 1. For the reasons given below, we agree with the Examiner that
the subject matter of claim 1 would have been obvious to a person of
ordinary skill in the art in view of the collective teachings of the applied
prior art references.
Thompson discloses an apparatus for providing an indication of the
condition of a solar panel. Figs. 1-3; ¶¶ 28-38. Specifically, Thompson
teaches determining a power estimate using a particular equation, comparing
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actual power with the power estimate, and generating a warning signal in
response to a difference between the actual power signal and the power
estimate. ¶ 33. Thompson not only discloses comparing a reference or
expected power output with actual power at any given time of operation but
also discloses continuously monitoring power production output using
memory storage. ¶¶ 127, 139, 140. Warnings alert users that maintenance
may be required. Id. ¶ 149.
Chou discloses a three-dimensional graphical profile showing solar
cell power production as a function of varying sunlight intensity and load
current. Chou at 165; Fig. 6. At a constant load current, the graph discloses
power production as a function of sunlight intensity, id., which a person of
ordinary skill in the art would understand is time-dependent. Furthermore,
Chou’s Figures 10(a) and 10(b) show computer-generated graphical power
profiles at noon when the solar panel constantly provides 2.8W and in the
afternoon when the solar panel outputs around 0.9W, respectively. Id. at
165-166.
We find that a person of ordinary skill in the art would have
understood from these disclosures that the power output of a solar cell
depends on various factors including those that are time-dependent such as
sunlight intensity. Given the knowledge that power output varies depending
on the time of day or even year, as shown in Chou, we conclude that a
person of ordinary skill in the art would have been prompted to improve
Thompson’s solar cell monitoring apparatus to take into account the
variation in power output as a function of time and to implement that
improvement by comparing (i) computer-generated graphical profiles of
actual power output as a function of other variables, including time, with
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(ii) expected power output as a function of other variables, including time.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”).
See also Perfect Web Techs. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed.
Cir. 2009) (an analysis of obviousness “may include recourse to logic,
judgment, and common sense available to the person of ordinary skill that do
not necessarily require explication in any reference or expert opinion”).
For these reasons, we uphold the rejection of claim 1.

Claims 2-4, 7, 8, 11, & 14:
With respect to claims 2-4, 7, 8, 11, and 14, the Appellant relies on
the same arguments offered in support of claim 1. App. Br. 8-9. Therefore,
we affirm the rejection of these claims for the same reasons given for the
rejection of claim 1.

Claims 9, 10, 19 & 20:
Claim 9, which depends from claim 1, further recites: “wherein the
impairment detection module automatically corrects the impairment upon
determining that the impairment exists.” App. Br. 22 (Claims App’x.)
Claim 19, which depends from independent method claim 11, recites a
similar further limitation. Id. at 24. Claims 10 and 20 depend from claims 9
and 19, respectively. Id. at 22, 24.
The Examiner found that the combination of Thompson in view of
Chou discloses that the impairment detection module automatically corrects
the impairment upon determining that an impairment exists. Ans. 7, 19
(citing Thompson’s Fig. 3, element 76, and ¶¶ 28-38.)
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The Appellant argues that the combination discloses the adjustment of
the expected power production output based on sunlight intensity and other
factors, but does not disclose an automatic correction of impairment upon
determining that an impairment exists. App. Br. 10.
Thus, the issue arising from these contentions is whether Thompson
has been shown to describe automatic correction of an impairment upon
detection of such an impairment.
We agree with the Appellant on this issue. Thompson’s disclosure of
element 76 in Figure 3 does not constitute a description or suggestion of the
disputed claim limitation. Thompson discloses element 76 as a “parameter
memory,” which is used in the calculation of expected power output based
on signals for age, irradiance, and temperature. See Thompson ¶¶ 122-136.
The difference between the actual power production output and the expected
power output is computed, and this difference is compared with a stored
power difference criterion. Id. ¶ 138. If the difference is greater than the
stored power difference criterion, then the system generates a warning. Id. ¶
139. But the Examiner failed to demonstrate that the warning results in an
automatic correction of the impairment in the event an impairment is
determined to exist. The Examiner appears to have relied upon the
calibration calculations that determine the values of the adjustment factors x,
y, and z used to determine the expected power output. See Ans. 7. These
calculations, however, have not been shown to be used as part of an
automatic correction of an impairment during operation of the apparatus.
For these reasons, we reverse the rejection of claims 9 and 19 (and
claims 10 and 20 dependent thereon).

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Claim 15:
For claim 15, which depends from independent method claim 11, the
Appellant offers the same or similar arguments made in support of claim 1.
Therefore, we affirm the rejection of claim 15 for the same reasons
discussed above for claim 1.

Claim 16:
Claim 16 depends from claim 15 and recites: “wherein the operating
data comprises at least one of an average power production or a usual power
production over a specified period of time.” App. Br. 23 (Claims App’x.)
The Examiner found that the combination of Thompson in view of
Chou discloses the further limitations of claim 16. Ans. 8-9. Specifically,
the Examiner found that Thompson’s Figure 5, steps 186-190, constitutes a
description of the recited limitation. Id. at 9, 20.
The Appellant argues that Thompson discloses an expected power
production output that is calculated from operating data taken at a specific
point in time but that the combination does not disclose an average power
production or a usual power production over a specified period of time.
App. Br. 13.
Thus, the issue arising from these contentions is whether the
Examiner has shown that the cited portion of Thompson describes the
disputed claim limitations.
Again, we agree with Appellant. Thompson’s Figure 5 discloses an
expected power production output at operating conditions, ¶ 122, and that
this output can be represented as a graphical profile, as discussed in the
affirmance of claim 1. Thompson’s Figure 5 also discloses obtaining actual
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power production data continuously, id. ¶¶ 127, 139, 140, which as
discussed in the affirmance of claim 1, can be represented as a graphical
profile. However, Thompson Figure 5 has not been shown to disclose an
average power production or a usual power production over a specified
period of time.
Therefore, we reverse the rejection of claim 16.

Claim 18:
Claim 18 also depends from claim 11 and recites: “analyzing, upon
determining that the impairment exists, the power production profile to
identify a cause of the impairment.” App. Br. 23 (Claims App’x.)
The Examiner found that the combination of Thompson in view of
Chou discloses generating a report of power production over time for the
solar array. Ans. 9. The Examiner also found that Thompson’s apparatus
generates a warning when the solar panel performs below a preset threshold.
Id. at 20. The Examiner further found that after a warning is generated, the
microprocessor adjusts the irradiance factor “because the change in
irradiance factor adjustment provides an indication of a cause or the
condition in the solar panel cells.” Id. at 20-21.
The Appellant argues that the combination does not disclose that an
analysis is conducted to identify the cause of the impairment. App. Br. 13.
We agree with the Appellant. As a preliminary matter, the
Examiner’s rejection of claim 18 as explained on page 9 of the Answer is
not directed to claim 18’s limitations, as argued by the Appellant. Rather,
the rejection as stated on page 9 of the Answer appears to be directed to the
limitations of claim 7, which is directed to the generation of a report, not the
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identification of the cause of an impairment. On pages 20-21 of the Answer,
the Examiner states: “based on the warning signal [disclosed in Thompson,]
the microprocessor in 76 [as shown in Fig. 3] adjusts the irradiance factor
because the change in irradiance factor provides an indication of a cause or
the condition of the solar panel cells.” That finding is incorrect.
Thompson’s element 76 is identified as a parameter memory, which stores
irradiance and age adjustment factors x and y for processor circuit 70 to
produce an expected power estimate Pe. See Thompson ¶ 122. Thompson
further teaches that a warning is generated when the difference between the
actual power signal P and power estimate Pe exceeds a certain power
difference criterion. Id. The Examiner, however, did not direct us to any
disclosure or technical reasoning establishing how a change in the irradiance
factor, which is used to calculate a power estimate, necessarily involves or
results in the identification of a cause of the impairment, as required by
claim 18.
Because the Examiner’s reasons for rejecting claim 18 are
unpersuasive, we reverse the rejection of claim 18.

II.
Claims 5 & 12:
The Appellant argues claims 5 and 12 together, which depend from
claims 1 and 11, respectively. App. Br. 14-15. Therefore, we confine our
discussion to claim 5, which we select as representative pursuant to 37
C.F.R. § 41.37(c)(1)(vii).
As we discussed above, the Examiner concluded that the combination
of Thompson and Chou would have suggested that the impairment detection
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module perform a comparison of the power production profile and a
reference power profile and generate an alert. Ans. 9. The Examiner also
found that the combination would have suggested the impairment profile to
be a graphical profile depicting power production over time. Id. at 9-10.
The Examiner acknowledged that the combination does not disclose
identification, based on the comparison, of a cause of the impairment. Id. at
10. The Examiner found, however, that Takehara discloses an abnormality
detection apparatus that accurately detects a defective solar panel element.
Id.
The Appellant argues that the comparison is made between discrete
values, but not between a power production profile and an impairment
profile to identify the cause of the impairment. App. Br. 14-15.
Thus, the issue arising from these contentions is whether the
Appellant has shown reversible error in the Examiner’s conclusion that the
subject matter of claim 5 would have been obvious to a person of ordinary
skill in the art in view of the cited references.
We discern no reversible error in the Examiner’s rejection based on
the Appellant’s argument. The cited portions of Takehara, Ans. 10, refer to
Takehara’s Figure 12, which is a graph of time versus relative current for a
solar panel element. Col. 8, ll. 11-13. Takehara indicates that when the
actual current deviates from the expected current over an extended period of
time, the solar panel is failing. Col. 8, ll. 18-45. Based on Takehara’s
teachings, one having ordinary skill in the art would reason, by using
common sense, that a similar graph of time versus actual power production
and expected power production, would work similarly to identify any solar
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array that is failing.6 See Perfect Web, 587 F.3d at 1329-30. In making the
comparison, the cause of impairment—a failing solar panel—would be
identified, as the Examiner explained. Ans. 22.
For these reasons, the rejection of claims 5 and 12 is affirmed.

Claim 6:
Claim 6 depends from claim 1 and recites: “wherein the impairment
detection module analyzes the power production profile to identify a cause
of the impairment.” App. Br. 22 (Claims App’x.)
We affirm the rejection of claim 6 for the same or similar reasons as
claim 5. It is well established that “the PTO must give claims their broadest
reasonable construction consistent with the specification . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (emphasis added). “[A]s applicants
may amend claims to narrow their scope, a broad construction during
prosecution creates no unfairness to the applicant or patentee.” Id. In this
instance the term “impairment” recited in the claims includes a failing solar
panel (see, e.g. Spec. 4 (an “impairment” can be a broken component)). As
discussed, Takehara’s Figure 12 discloses a graph of time versus relative
current, showing that reduced current output over time indicates a failing
solar panel. Takehara, col. 8, ll. 18-45. Considering Thompson’s teachings
that lower-than-expected power output indicates impairment, see Thompson
¶¶ 122, 138, 139, a person of ordinary skill in the art would have had reason

6 As is well known to one of ordinary skill in the art, Power = Voltage x
Current.
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to believe that a graph similar to Takehara’s Figure 12, but showing time
versus power would also be useful to show reduced power output over time
when a solar panel is failing.
Accordingly, we also affirm the rejection of claim 6.

Claim 13:
Claim 13 depends from claim 11 and recites:
wherein the determining step comprises identifying at least one
statistically significant difference between the power production
profile and the at least one reference profile, wherein the at least
one statistically significant difference indicates that the
impairment exists.
App. Br. 23 (Claims App’x.)
We affirm the rejection of this claim for reasons similar to those given
above. Takehara’s Figure 6 discloses identifying a statistically significant
difference in current, this difference indicating impairment. If a statistically
significant difference in current can indicate impairment, then one having
ordinary skill in the art at the time of invention would have reason to believe
that a statistically significant difference in power output between a reference
power profile and an actual power production output profile is the result of
an impairment. Therefore, we discern no reversible error in the rejection of
claim 13.

Claims 17 & 21-26:
With respect to system claim 21, the Appellant relies on the same
arguments we previously found unpersuasive. App. Br. 16-17. Therefore,
we uphold the rejection of claim 21 for reasons already discussed above.
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With respect to claims 17 (dependent on claim 11) and 22-26
(dependent on claim 21), the Appellant relies on the same arguments
presented for claims 11 and 21, which we found unpersuasive with respect to
claim 1. Therefore, we affirm the rejection of claims 17 and 22-26.

III.
Claim 27:
For claim 27, which depends from claim 21, the Appellant again
argues that the prior art references do not disclose or suggest comparing
graphical profiles depicting power production over time. App. Br. 18.
Because we have found this argument unpersuasive, we affirm the rejection
of claim 27.

SUMMARY
Rejection I as to claims 1-4, 7, 8, 11, 14, and 15 is affirmed.
Rejection I as to claims 9, 10, 16, and 18-20 is reversed.
Rejection II as to claims 5, 6, 12, 13, 17, and 21-26 is affirmed.
Rejection III as to claim 27 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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