Ex Parte Hunt et al

Patent Trial and Appeal Board

Oct 31, 2014

11311779 (P.T.A.B. Oct. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HUNTER L. HUNT, DANIEL G. PRICE, HUGH D. BAKER JR.,
and DAVID A. WHITE
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Appeal 2012-006568
Application 11/311,779
Technology Center 2600
____________

Before JOHN A. JEFFERY, STEVEN D.A. McCARTHY, and
JENNIFER L. McKEOWN, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 16–27 and 76–83. Claims 1–15 and 28–75 were
cancelled. We have jurisdiction under 35 U.S.C. § 6(b), and we affirm.

STATEMENT OF THE CASE
Appellants’ invention relates to a user-installable, interactive power
usage monitoring system using a display device. See generally Spec. 1.
Claim 16 is illustrative:
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16. A power usage monitor comprising:
a receiver operable to receive data from a server
associated with a power provider, the received data including a
first data element being indicative of status of a power network
and a second data element being indicative of estimated cost
data associated with an on-site location;
a display operable to display the first data element of the
received data and the second data element; and
a processor coupled to said receiver and said display, said
processor having software executing thereon to:
receive the data from said receiver;
parse the data including the first data element and the
second data element;
communicate the first data element to said display to
notify a user at the on-site location of the status of the power
network; and
communicate the second data element to said display, the
second data element comprising the estimated cost data, the
estimated cost data calculated using a variance between on-site
power usage and a power usage benchmark associated with the
on-site location.

THE REJECTION
The Examiner rejected claims 16–271 and 76–83 under 35 U.S.C.
§ 103(a) as unpatentable over Kelley (US 6,088,659; July 11, 2000) and
Bartone (US 6,633,823 B2; Oct. 14, 2003). Ans. 5–11.2

1 Although the Examiner’s statement of the rejection omits claims 20 and 26,
the Examiner nonetheless refers to these claims in the associated discussion.
Compare Ans. 5 with Ans. 9. Accordingly, we present the correct claim
listing here for clarity and treat the Examiner’s error in this regard as
harmless.
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CONTENTIONS
The Examiner finds that Kelley discloses a power usage monitor with
many recited elements of claim 16 including a processor having software
executing thereon to communicate a second data element indicative of
estimated cost data (i.e., load profile usage) associated with an on-site
location to a display. Ans. 5–7, 12–13. Although the Examiner
acknowledges that Kelley does not state expressly that cost data is estimated
by comparing current and stored usage (i.e., a benchmark), the Examiner
cites Bartone’s processing and displaying real-time information that is
analyzed to estimate future energy use for teaching this feature. Ans. 7–9,
13.
Appellants argue, among other things, that neither Kelley nor Bartone
teaches how estimated data is determined, let alone by using a variance
between on-site power usage and an associated power usage benchmark as
claimed. App. Br. 20–21; Reply Br. 2–3. According to Appellants,
comparing power usage to a benchmark is not the only way to estimate
power usage, and Bartone’s cost data estimation using interpolation and
prediction analysis is not the same as comparing power usage to a power
usage benchmark. App. Br. 20–21; Reply Br. 2–3. Appellants also argue
various other recited limitations summarized below.

2 Throughout this opinion, we refer to (1) the Appeal Brief filed August 15,
2011 (“App. Br.”); (2) the Examiner’s Answer mailed November 30, 2011
(“Ans.”); and (3) the Reply Brief filed January 30, 2012 (“Reply Br.”).
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ISSUES
Under § 103, has the Examiner erred by finding that Kelley and
Bartone collectively would have taught or suggested a power usage monitor
comprising:
(1) a processor with software executing thereon to communicate a
second data element comprising estimated cost data to a display, the
estimated cost data calculated using a variance between on-site power usage
and a power usage benchmark associated with an on-site location as recited
in claim 16?
(2) at least one data element including local power shortage as recited
in claim 18?
(3) a processor configured to determine and notify the user of
inefficient or malfunctioning equipment at the on-site location as recited in
claim 79?

ANALYSIS
Claims 16, 17, 19–23, 25–27, 76–78, and 80–82
We begin by noting that the Examiner’s reliance on Kelley’s
estimating load profile usage in column 50 as teaching estimating cost data
is undisputed. See Ans. 6, 12 (citing Kelley, col. 50, ll. 13–20). Rather, this
dispute turns on how this estimated cost data is calculated, namely by using
the recited variance between on-site power usage and an associated
benchmark.
On this record, we see no error in the Examiner’s reliance on Bartone
in this regard. Bartone provides real-time energy use and cost information to
users or technicians for statistical analysis, interpolation, and prediction
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analysis to estimate future energy use. Bartone, col. 7, l. 55 – col. 8, l. 14.
The Examiner finds that this analysis involves comparing current and known
data (i.e., a benchmark). Ans. 8, 13. Because Bartone uses benchmarking in
connection with energy use data in column 8, lines 3 through 8, Bartone at
least suggests that the associated analysis involves a comparison with
benchmarks not only for potential waste and inefficiency determinations, but
also for estimation in light of the following passage in column eight. As the
Examiner indicates (Ans. 12), this comparison involves a variance between
the benchmark and the current data—a finding consistent with the plain
meaning of the term “benchmark.” See MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 106 (10th ed. 1993) (defining “benchmark” in pertinent part as
“something that serves as a standard by which others may be measured or
judged”).
So even assuming, without deciding, that comparing power usage to a
power usage benchmark is not the only way to form a power usage estimate
as Appellants contend (Reply Br. 3), skilled artisans would nonetheless
understand that it is a way form such an estimate in light of Bartone. As
such, we see no error in the Examiner’s position at least to the extent that
calculating estimated cost data using the recited variance between on-site
power usage and an associated benchmark would have been at least an
obvious variation.
Therefore, we are not persuaded that the Examiner erred in rejecting
representative claim 16, and claims 17, 19–23, 25–27, 76–78, and 80–82 not
argued separately with particularity.

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Claims 18 and 24
We also sustain the Examiner’s rejection of claim 18 reciting that the
at least one data element includes at least one of various aspects, including
local power shortage. At the outset, we note that the claim is unclear in two
respects. First, it is unclear which particular data element in independent
claim 16 (i.e., first or second) “the at least one data element” in claim 18
refers, for this term lacks antecedent basis. Nor is it clear how a data
element can include various recited event-related aspects, such as a power
shortage, brownout, and rolling blackouts as claimed. Although data may
represent or account for these events, it is unclear how data can include
them. To the extent that these inconsistencies render the claim indefinite
under § 112, such a question is not before us. Nevertheless, the Examiner
should consider this question if prosecution follows this opinion.
In any event, we see no error in the Examiner’s reliance on Kelley’s
outage alert notifications for at least suggesting that the data element
includes a local power shortage, regardless to which data element claim 18
refers. Ans. 9, 14 (citing Kelley, col. 10, ll. 5–11). Even under Appellants’
definitions of “outage” and “shortage” (Reply Br. 4), Kelley’s outage
notification at least suggests a local power shortage, for an outage would at
least temporarily suspend power, thus resulting in no power at all: the
epitome of a shortage or deficient amount.
Lastly, Appellants’ newly-raised contention that Kelley does not teach
or suggest that the data element includes times of scheduled blackouts

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(Reply Br. 4–5) is not only waived as untimely,3 but is also not germane to
the Examiner’s reliance on the alternative local power shortage aspect of the
recited data element noted above. To the extent that Appellants contend that
Kelley does not teach or suggest multiple recited aspects of the data element,
such arguments are not commensurate with the scope of the claim that
requires only at least one of those aspects.
Therefore, we are not persuaded that the Examiner erred in rejecting
representative claim 18, and claim 24 not argued separately with
particularity.

Claims 79 and 83
We also sustain the Examiner’s rejection of claim 79 reciting that the
processor is configured to determine and notify the user of inefficient or
malfunctioning equipment at the on-site location. Although the Examiner
cites Kelley’s tamper notification in connection with the recited inefficient
equipment notification in the rejection, the Examiner nonetheless refers to
the alternative recited malfunctioning equipment notification in responding
to Appellants’ arguments. Compare Ans. 10 with Ans. 14–15 (citing Kelley,
col. 10, ll. 5–11). Despite this shift, Appellants address the Examiner’s
newer position in the Reply Brief, arguing that the Examiner’s position is
flawed because the plain meaning of “tamper” differs from that of
“malfunction.” Reply Br. 6.

3 See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative)
(“[T]he reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner’s
rejections, but were not.”).
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We see no error in the Examiner’s newer position. The term “tamper”
is defined in pertinent part as “to interfere with or meddle with, esp. so as to
damage, corrupt, etc.” WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN
ENGLISH 1366 (3d College ed. 1993) (emphasis added). Because tampering
can cause damage or corruption according to this definition, the Examiner’s
position that Kelley’s tamper alert notifies users that the meter provides
incorrect readings because someone damaged or modified the meter (Ans.
14–15) is consistent with this plain meaning and, therefore, reasonable. To
the extent that Appellants’ arguments are based solely on their proffered
definition of “tamper” (see Reply Br. 6 (citing App. Br. 23)), such
arguments do not preclude a broader reasonable definition based on other
sources supporting the Examiner’s interpretation. See, e.g., In re Morris,
127 F.3d 1048, 1056 (Fed. Cir. 1997) (“Absent an express definition in their
specification, the fact that appellants can point to definitions or usages that
conform to their interpretation does not make the PTO’s definition
unreasonable when the PTO can point to other sources that support its
interpretation.”).
Therefore, we are not persuaded that the Examiner erred in rejecting
representative claim 79, and claim 83 not argued separately with
particularity.

CONCLUSION
The Examiner did not err in rejecting claims 16–27 and 76–83 under
§ 103.

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DECISION
The Examiner’s decision rejecting claims 16–27 and 76–83 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)(1)(iv).

AFFIRMED

msc