Ex Parte Wolfe et al

Patent Trial and Appeal Board

Sep 21, 2017

12540392 (P.T.A.B. Sep. 21, 2017)

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.
12/540,392 08/13/2009 Andrew Wolfe M-6300.137 US 1216
103344 7590 09/22/2017
Moritt Hock & Hamroff LLP
400 Garden City Plaza
Garden City, NY 11530
EXAMINER
STERRETT, JONATHAN G
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
09/22/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW WOLFE and THOMAS M. CONTE
Appeal 2016-007905
Application 12/540,392
Technology Center 3600
Before HUNG H. BUI, JOSEPH P. LENTIVECH, and
AARON W. MOORE, Administrative Patent Judges.
MOORE, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-007905
Application 12/540,392
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 2, 4, 7, 8, 10, 11, 14, 16—19, and 27—33, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse and enter a NEW GROUND OF REJECTION UNDER 37
C.F.R. § 41.50(b).
THE INVENTION
The application is directed to systems and methods for reducing the
cost of electrical energy in a datacenter by scheduling tasks. (Abstract.)
Claim 1, reproduced below, exemplifies the subject matter on appeal:
1. A method to schedule a task, the method comprising:
operating a data storage center that is coupled to at least a
plurality of power sources, an energy cost information source,
multiple environmental sensors, a weather information source, a
networking component, and a data storage component; and
controlling the data storage center via an electrical controller
to perform a first data processing task and a second data
processing task at one or more times, wherein the electrical
controller is associated with a computer server of the data storage
center, and the electrical controller is effective to perform
operations, and the controlling including:
obtaining, from the energy cost information source,
respective expected future monetary costs per unit of electrical
energy at different future times;
obtaining, from the weather information source, respective
predictions of weather conditions at the data storage center at the
different future times, wherein a time horizon of the respective
1 Appellants identify Empire Technology Development LLC as the real
party in interest. (See App. Br. 3.)
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Application 12/540,392
predictions of weather conditions at the different future times
corresponds to a latest time and day that the controller may
consider to perform the first and second data processing tasks;
relating, in a lookup table, the respective predictions of
weather conditions at the different future times with
corresponding amounts of electrical energy that would be
consumed in connection with performing the first and second
data processing tasks under the weather conditions, wherein the
amounts of electrical energy include electrical energy consumed
to perform the first and second data processing tasks and
electrical energy consumed to cool the data storage center during
performance of the first and second data processing tasks;
multiplying the corresponding amounts of electrical energy
with the respective expected future monetary costs per unit of
electrical energy at the different future times, to determine
respective financial costs to perform the first and second data
processing tasks at the different future times;
selecting at least one of the different future times at which the
data storage center should perform the first and second data
processing tasks, based, at least in part, on the respective
financial costs of the performance of the first and second data
processing tasks at the selected at least one of the different future
times being most inexpensive relative to others of the different
future times;
receiving, from one or more of the multiple environmental
sensors, update information indicative of current weather
conditions at the selected at least one of the different future
times;
commencing performance of the first and second data
processing tasks at the selected at least one of the different future
times in response to financial costs, of the performance of the
first and second data processing tasks at the selected at least one
of the different future times and under the current weather
conditions indicated by the received update information, being
within a cost threshold;
suspending the commenced performance of the first data
processing task, in response to an increase in the financial cost
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Application 12/540,392
of the performance of the first data processing task to above the
cost threshold, and subsequently resuming the suspended
performance of the first data processing task after the financial
cost of the performance of the first data processing task falls back
to be within the cost threshold; and
continuing the commenced performance of the second data
processing task, despite an increase in the financial cost of the
performance of the second data processing task above the cost
threshold, due to a criticality of the performance of the second
data processing task, wherein continuing the commenced
performance of the second data processing task includes
switching power to a different and less-expensive one of the
plurality of power sources to support the continued performance
of the second data processing task so as to reduce the increased
financial cost of the continued performance of the second data
processing task.
THE REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
G. Barbose, et al., A Survey of Utility Experience With Real Time
Pricing, Berkeley National Laboratory, No. LBNL-54238 (Dec. 2004)
(available at http://escholarship.org/uc/item/8685983c) (“Barbose”)
Report to Congress on Server and Data Center Energy Efficiency,
Public Law 109-431, U.S. Environmental Protection Agency,
ENERGY STAR Program (August 2, 2007) (“EPA”)
R. Yin, et al., Auto-DR and Pre-cooling of Buildings at Tri-City
Corporate Center, Berkeley National Laboratory (Nov. 2008) (“Yin”)
THE REJECTIONS
1. Claims 1, 2, 4, 7, 8, 10, 11, 14, 16—19, and 27—33 stand rejected
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement. (See Final Act. 22—29.)
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Application 12/540,392
2. Claims 1, 2, 4, 7, 8, 10, 11, 14, 16—19, and 27—33 stand rejected
under 35U.S.C. § 112, second paragraph, as indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor regards as the invention. (See Final Act. 29—30.)
3. Claims 1, 2, 4, 7, 8, 10, 11, 14, 16—19, and 27—33 stand rejected
under 35 U.S.C. § 103(a) as unpatentable Yin, EPA, and Barbose. (See
Final Act. 31—60.)
ANALYSIS
Written Description
“Whether a patent claim satisfies the written description requirement
of 35 U.S.C. § 112, paragraph 1 depends on whether the description ‘clearly
allows persons of ordinary skill in the art to recognize that the inventor
invented what is claimed.’” Inphi Corp. v. Netlist, Inc., 805 F.3d 1350, 1355
(Fed. Cir. 2015) (quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1562—
63 (Fed. Cir. 1991)).
The Examiner finds that Appellants have failed to adequately describe
“obtaining predictions of weather conditions,” “relating in a lookup table
those predictions of weather conditions with amounts of electrical energy to
perform tasks and to cool the data center,” and “determining the costs by
multiplying the amount of electrical energy with expected future monetary
costs of electrical energy” because such steps “represent[] a set of
sophisticated calculations.” (See Final Act. 22—28.) Having reviewed the
Specification and the Declaration of Ezekiel Kruglick, we agree with
Appellants that the disclosure is sufficient to allow one of ordinary skill to
recognize that the inventor invented what is claimed and, therefore, decline
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to sustain the rejections of claims 1, 2, 4, 7, 8, 10, 11, 14, 16—19, and 27—33
under 35U.S.C. § 112, first paragraph.
Indefiniteness
In original prosecution, “a claim is indefinite when it contains words
or phrases whose meaning is unclear.” Ex parte McAward, Appeal 2015-
006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential)
(quoting In re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014)).
Focusing on the same limitations as in the written description
rejection, the Examiner finds “[t]he metes and bounds of what constitutes
the obtaining, relating and determining are not clear,” that “[t]he
specification as described above fails to adequately describe the structure
and functionality of the controller responsible to perform these functions,”
and that “one of ordinary skill in the art would not be reasonably apprised of
what would infringe the obtaining, relating and determining and what would
not infringe the obtaining, relating and determining.” (Final Act. 29.) We
do not agree. These claims would cover a system that employed any method
of, as an example, “obtaining predictions of weather conditions.” That the
claims are not narrowed to specific techniques or algorithms does not make
them indefinite. We therefore do not sustain the rejection of claims 1, 2, 4,
7, 8, 10, 11, 14, 16—19, and 27—33 under 35 U.S.C. § 112, second paragraph.
Obviousness
With respect to claim 1, the Examiner finds that “Yin teaches
scheduling tasks (i.e. cooling) to minimize energy usage,” that “Yin does not
provide these teachings in the context of managing a data center (i.e. a
building dedicated to housing a group of computing equipment),” but that
“the application of these teachings to a data center is suggested by EPA.”
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Appeal 2016-007905
Application 12/540,392
(Final Act. 39.) The Examiner further finds that “Yin does not teach
deferring the usage of energy in response to an immediate increase in rates
(i.e. implying a real time or near real time notification that rates are going
up),” but that “[wjhile Yin does not explicitly teach a real time obtaining of
electricity rates, this concept is old and well known in demand management
in the electric utility industry, as shown by Barbose.” (Id. at 45.)
Appellants argue, inter alia, that the combination of Yin, EPA, and
Barbose would not have taught or suggested “multiplying the corresponding
amounts of electrical energy with the respective expected future monetary
costs per unit of electrical energy at the different future times, to determine
respective financial costs.” (App. Br. 27.) In particular, Appellants argue
“Yin appears to show determining a difference between a baseline value and
an event value to determine a savings value” and “no multiplication appears
to be shown by Yin at all.” (Id. at 28.)
The Examiner responds, referencing in particular Yin’s Figure 13,2
that “Yin calculates the actual amount of electrical energy in terms of
kilowatts (both instantaneous and average) that is required to provide
building cooling,” that “Yin’s disclosure is directed to offloading the cooling
from this higher priced area in order to ‘pre-cooF a building,” and that Yin
calculates the amount of energy in terms of kilowatts of demand that are
saved by doing so (thus teaching the multiplying).” (Ans. 11.)
2 The legend for Figure 13, on page 21 of Yin, erroneously reads “Figure 9.”
Yin also includes a figure on page 32 that is erroneously labeled “Figure 13”
instead of “Figure 17.”
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Application 12/540,392
The referenced Figure 13 from Yin is reproduced below.
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