Ex Parte Hyde et al

Patent Trial and Appeal Board

Mar 4, 2016

12290682 (P.T.A.B. Mar. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/290,682 10/30/2008
44765 7590 03/08/2016
INTELLECTUAL VENTURES - ISF
ATTN: DOCKETING, ISF
3150 - 139th Ave SE
Bldg.4
Bellevue, WA 98005
FIRST NAMED INVENTOR
Roderick A. Hyde
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0507-006-001-COOOOS 1161
EXAMINER
BETSCH, REGIS J
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
03/08/2016 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):
ISFDocketlnbox@intven.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL
BOARD
Ex parte RODERICK A. HYDE, JORDIN T. KARE, and
LOWELL L. WOOD JR.
Appeal2014-002251
Application 12/290,682 1
Technology Center 2800
Before KAREN M. HASTINGS, WESLEY B. DERRICK, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 257, 259-262, 264--277, 279-293, and
295-308. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Claim 257 is representative of the claimed invention (emphasis
added):
257. A system comprising:
a data processing system including:
1 The real party in interest is stated to be Searete LLC, an affiliate of
Intellectual Ventures Management, LLC (App. Br. 4).
Appeal2014-002251
Application 12/290,682
an input interface configured to receive, from a
measurement device operatively coupled to an electrical circuit
having an electrical appliance electrically connected thereto,
first and second electrical signals that are indicative of
measured first and second electrical power signals, measured
by the measurement device at first and second times,
respectively, of the electrical circuit having the electrical
appliance electrically connected thereto;
a frequency analyzer configured to frequency
analyze the first and second electrical signals that are
indicative of the measured first and second electrical power
signals, measured by the measurement device at first and
second times, respectively, of the electrical circuit having the
electrical appliance electrically connected thereto; and
a data processing component configured to identifY
at least one change in operational state of the electrical
appliance electrically connected to the electrical circuit based
upon a difference in the first and second frequency analyzed
electrical signals.
At the outset, we note the Examiner rejected a majority of the claims
on the ground of nonstatutory obviousness-type double-patenting over the
claims of co-pending Application Serial Nos. 12/290,633 (Appeal No. 2014-
002201), 12/290,681 2 (Appeal No. 2014-002204), 12/290,672 (abandoned
after filing of Notice of Appeal), 12/284,333 (abandoned after filing of
Notice of Appeal), and 12/290,631 (Appeal No. 2014-002199)3 (Final Rej.
6-9). Appellants do not present any arguments traversing these double-
2 It appears that the Examiner mistakenly wrote 12/290,633, rather than
12/290,681, in the double-patenting rejection over 12/290,681 (Final Rej.
7).
3 Each co-pending application under appeal has been identified as a related
appeal (App. Br. 4).
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Appeal2014-002251
Application 12/290,682
patenting rejections (App. Br. generally). Accordingly, the rejections over
the currently co-pending applications are summarily affirmed.
The Examiner also maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):
1) Claims 257, 259-262, 264--266, 268-273, 275-277, 279-283,
287, 289-293, 295-299, 303, and 305-308 as unpatentable over
Onoda et al., US Pre-Grant Publication 2003/0093390 Al,
published May 15, 2003 (hereinafter "Onoda"), in view of
Miller, US Pre-Grant Publication 2006/0276938 Al, published
Dec. 7, 2006 (hereinafter "Miller"), and Oswald et al., US Pre-
Grant Publication 2005/0171645 Al, published Aug. 4, 2005
(hereinafter "Oswald");
2) Claims 267, 274, 284--286, 288, 300-302, and 304 as
unpatentable over the combination of Onoda, Miller and
Oswald and further in view of Hart et al., US 4,858, 141,
patented Aug. 15, 1989 (hereinafter "Hart").
Appellants focus their argument on independent claim 257, and rely
upon similar arguments for independent claims 277 and 293 (App. Br. 39-
42). Appellants do not present additional arguments for the dependent
claims, including those separately rejected with Hart (id. at 42--47). Thus,
all of the claims stand or fall together.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence on this
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Application 12/290,682
record supports the Examiner's conclusion that Appellants' claims are
unpatentable over the applied prior art. We sustain the Examiner's§ 103
rejection essentially for the reasons set out by the Examiner in the Answer.
We add the following for emphasis.
Appellants argue that the Examiner did not establish a prima facie
case of obviousness because the first and second frequency analyzed
electrical signals (for claim 257) and first and second load characteristics
(for claims 277 and 294) (App. Br. 39--40, Reply Br. 2-8) must result from
the "first and second electrical signals that are indicative of measured first
and second electrical power signals, measured by the measurement device at
first and second times" as recited in claim 257 (App. Br. 40, Reply Br. 4--5).
According to Appellants, the combination of prior art references cited
by the Examiner measures a power signal at a first time with the circuit in
Figure 2 of Onoda and makes a model (App. Br. 40, Reply Br. 4--6)4. Then,
measurements are made a second time, with the second measurements being
analyzed and compared against the model, rather than directly against the
first measurement's frequency analyzed electrical signal (App. Br. 40--41,
Reply Br. 5-6).
In Appellants' Reply Brief, they argue that the model of Onoda is no
longer the same signal that was measured at the first time because the signal
has been processed and changed into the model, which is not the same signal
(Reply. Br. 4--5). Appellants also state that that the model of the
combination of applied references is now the model taught by Oswald
4 Appellants do not direct any arguments specific to the modification of
Onoda with Miller.
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Application 12/290,682
because the model of Onoda is created using a different circuit, and because
Oswald discloses storing the appliance measurements in a database, which is
different from comparing measurements of the same signal (id. at 5-7).
Appellants therefore contend that the cited prior art does not disclose a data
processing component that identifies at least one change in operational state
of the electrical appliance connected to the electrical circuit based on a
difference in the first and second frequency analyzed electrical signals or on
a difference in the components of the first and second electrical load
characteristics (App. Br. 41, Reply Br. 7-8).
It is axiomatic 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). "[A]s applicants may amend claims
to narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee." Id.
Appellants have not sufficiently pointed out any error in the
Examiner's claim interpretation. Giving the claims their broadest reasonable
interpretation in light of the Specification, we agree with the Examiner that
the independent claims require that first and second measurements be taken
and that the same equipment makes both measurements, but do not require
any specific order or timing (Ans. 18-19). Then, the claims require that a
data processing component identifies a change in operational state of the
appliance based on a difference in the first and second frequency analyzed
electrical signals, which are indicative of the first and second electrical
power signals (id. at 18-20). Contrary to Appellants' position, the claim
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Application 12/290,682
language does not preclude the first signal being used as part of a model.
Nor have Appellants have pointed to any special definition in the
Specification that would establish that the claim language precludes the use
of a model.
The Examiner's obviousness determination is based on Onoda
disclosing taking power measurements at first and second times and using
the first measurement to build a model, so any comparison of a later
measurement to the model is a comparison of the first and second
measurements (id. at 18-19). Even though the model is used, the
measurements are still indicative of the power signals and are compared to
identify a change in operational state of the appliance (id. at 19). Miller
discloses using the model to create a baseline energy measurement of the
monitored appliance, and Oswald teaches that the same sensor can perform
both the first and second measurements (id. at 20-26).
After evaluating the references, taking into account the specific
teachings and inferences which one skilled in the art would reasonably be
expected to draw therefrom, we have found no error in the Examiner's
obviousness determination. In re Preda, 401F.2d825, 826 (CCPA 1968);
see also In re Keller, 642 F.2d 413, 425-26 (CCPA 1981) ("The test for
obviousness ... is what the combined teachings of the references would
have suggested to those of ordinary skill in the art."); In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.").
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Accordingly, for all the reasons stated above and in the Answer,
Appellants have not shown reversible error in the Examiner's obviousness
determination.
We sustain all of the Examiner's § 103 rejections on appeal.
The decision of the Examiner 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
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