Opower, Inc.

Patent Trials and Appeals Board

Jul 22, 2020

2020002233 (P.T.A.B. Jul. 22, 2020)

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.
14/677,792 04/02/2015 Stephanie Liao OP-0057-US 5175
51444 7590 07/22/2020
Kraguljac Law Group/Oracle
4700 Rockside Road
Summit One, Suite 510
Independence, OH 44131
EXAMINER
EL-HAGE HASSAN, ABDALLAH A
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
07/22/2020 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):
DDay@KragLaw.com
MPusti@KragLaw.com
PTOMail@KragLaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte STEPHANIE LIAO, JACQUELINE CHIU, DEAN ALLEN,
PATRICK HARAZIN, BRIAN SLOSS, and KOOROSH NOURI
________________

Appeal 2020-002233
Application 14/677,792
Technology Center 3600
________________

Before ELENI MANTIS MERCADER, JASON J. CHUNG, and
MATTHEW J. McNEILL, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–6, 8, 10–12, and 14–19. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
INVENTION
The invention relates to identifying high usage periods. Spec. ¶ 4.
Claim 1 is illustrative of the invention and is reproduced below:
1. A computer-implemented method performed by a
computing system including

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Oracle International Corporation
is the real party in interest. Appeal Br. 2.
Appeal 2020-002233
Application 14/677,792

2
at least one processor for executing stored instructions, the
method comprising:
obtaining, by at least the one processor accessing a
database, usage data for a selected location during a portion, but
less than an entirety of a current billing period, wherein the usage
data comprises a plurality of usage values that are measured by
a monitoring device at the selected location, and indicate an
amount of a commodity consumed at the selected location during
a plurality of different time intervals during a day, for each of a
plurality of different days included in the portion of the current
billing period, wherein the plurality of different time intervals
encompass different blocks of hours during the day;
grouping, by the at least one processor, the usage values
into a plurality of groups, wherein each group corresponds to a
respective one of the time intervals within the day, and comprises
the usage values indicating the amount of the commodity
consumed during the respective one of the time intervals during
each of the plurality of days;
for each group, computing consumption of the commodity
at the selected location during the respective one of the time
intervals over the plurality of different days based on the usage
values in the group;
comparing the computed consumption of the commodity
for each of the time intervals to identify a first time interval
within the day corresponding to a first group from the plurality
of groups having a largest computed consumption of the
commodity during the portion of the current billing period;
forecasting an anticipated commodity consumption for the
current billing period based on the usage data obtained for the
portion of the billing period;
conducting a comparison of the forecasted anticipated
commodity consumption to a threshold;
triggering issuance of an alert before an end of the current
billing period based on a result of the comparison of the
forecasted anticipated commodity consumption to the threshold,
wherein the alert indicates that the forecasted anticipated
commodity consumption exceeds the threshold;
in response to triggering the issuance of the alert,
generating a high usage period (HUP) notification, the HUP
Appeal 2020-002233
Application 14/677,792

3
notification identifying the first time interval, of the plurality of
different time intervals, as having a highest measured amount of
the commodity consumed during the portion of the current
billing cycle; and
controlling transmission, by the at least one processor via
a communication channel, of the HUP notification in an
electronic form to a remote device associated with a selected user
based on the result of comparing the forecasted anticipated
commodity consumption to the threshold, wherein the
transmitted HUP notification causes the remote device to
generate a display that highlights the first time interval as
comprising times during the day when the highest measured
amount of the commodity is consumed, to notify the selected
user of times during the day when the selected user can lessen
commodity consumption during a remainder of the billing
period.
Appeal Br. 15–17 (Claims Appendix) (emphases added).

REJECTIONS2
The Examiner rejects claims 1–6, 8, 12, 14, 15, and 17–19 under
35 U.S.C. § 103 as being unpatentable over the combination of Yu (US
2014/0006314 A1; published Jan. 2, 2014) and Ha (Sangtae Ha et al.,
TUBE: Time-Dependent Pricing for Mobile Data, 42 ACM SIGCOMM
247–58 (2012) (“Ha”)). Final Act. 14–26.
The Examiner rejects claims 10 and 11 under 35 U.S.C. § 103 as
being unpatentable over the combination of Yu, Ha, and Rada (US
2011/0251807 A1; published Oct. 13, 2011). Final Act. 26–27.

2 According to the Pre-Brief Appeal Conference Decision of September 3,
2019, the § 101 rejection has been withdrawn.
Appeal 2020-002233
Application 14/677,792

4
The Examiner rejects claim 16 under 35 U.S.C. § 103 as being
unpatentable over the combination of Yu, Ha, and Kishlock (US 6,785,620
B2; issued Aug. 31, 2004). Final Act. 27–28.

ANALYSIS
The Examiner finds Yu teaches datasets including past usage of a
commodity during at least one of a completed billing period, which the
Examiner maps to the limitation “a plurality of different days” (hereinafter
“first disputed limitation”). Final Act. 15 (emphasis omitted) (citing Yu
¶ 31, Abstract).
The Examiner finds Ha teaches data representing price, usage, and the
top 5 applications, which the Examiner maps to the limitation
comparing the computed consumption of the commodity for
each of the time intervals to identify a first time interval within
the day corresponding to a first group from the plurality of
groups having a largest computed consumption of the
commodity during the portion of the current billing period
(hereinafter “second disputed limitation”) recited in claim 1 (and similarly
recited in claims 17 and 18). Ans. 4–5 (citing Ha, Figs. 6a–6c).
Appellant argues Ha merely teaches comparing time dependent
pricing (e.g., higher prices charged during peak usage periods) to time
independent pricing (e.g., a static, fixed price is charged during all periods),
but fails to teach the second disputed limitation. Appeal Br. 9–13 (citing Ha,
page 9, column 1, lines 42–46). Appellant argues Ha’s Figures 6a–6c
merely teach displaying the discount offered for bandwidth during different
hours of a single day, whereas claim 1 requires computed consumption for
Appeal 2020-002233
Application 14/677,792

5
each time interval over a plurality of different days. Reply Br. 2–3.3 We
disagree with Appellant.
We disagree with Appellant’s argument that Ha merely teaches
comparing time dependent pricing (e.g., higher prices charged during peak
usage periods) to time independent pricing (e.g., a static, fixed price is
charged during all periods), but fails to teach the second disputed limitation.
Appeal Br. 9–13 (citing Ha, page 9, column 1, lines 42–46). The cited
portions of Ha teach displaying data representing price, usage, and the top 5
applications, which teach the second disputed limitation because Figure 6c
shows ranking the top 5 usage applications, the percentage of their usage,
and the time slots during which usage was the highest. Ans. 4–5 (citing Ha,
Figs. 6a–6c).
We disagree with Appellant’s argument that Ha’s Figures 6a–6c
merely teach displaying the discount offered for bandwidth during different
hours of a single day, whereas claim 1 requires computed consumption for
each time interval over a plurality of different days. Reply Br. 2–3. One
cannot show nonobviousness “by attacking references individually” where
the rejections are based on combinations of references. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981)). In this case, the Examiner relies on Yu’s datasets including
past usage of a commodity during at least one of a completed billing period

3 Although this argument first appears in the Reply Brief, we consider this
argument timely and, therefore, proper because the Examiner changed their
theory of unpatentability from the Final Action to the Answer. Compare
Final Act. 17 (relying on Ha, page 8, column 1, lines 42–50 to teach the
second disputed limitation) with Ans. 4–5 (relying on Ha, Figures 6a–6c to
teach the second disputed limitation).
Appeal 2020-002233
Application 14/677,792

6
to teach the first disputed limitation. Final Act. 15 (citing Yu ¶ 31,
Abstract). Notably, Appellant does not argue the Examiner’s finding of Yu
teaching the first disputed limitation. We also note that paragraph 31 of Yu
cited by the Examiner describes a monitoring operation pertaining to Yu’s
Figure 1, and Yu’s paragraph 32 teaches the frequency of monitoring as it
relates to Yu’s Figure 1. See ¶¶ 31 and 32. In particular, paragraph 32
teaches weekly monitoring operation at a defined schedule during the billing
period. Id. ¶ 32. In addition, we note numerous paragraphs of Yu teach
monthly bill periods. Id. ¶¶ 35, 40, 42, 56, 77.
Moreover, the Examiner finds, and we agree, that the combination of
Yu’s datasets includes past usage of a commodity during at least one of a
completed monthly billing period and Ha’s Figures 6a–6c illustrate data
representing price, usage, and the top 5 applications to teach the italicized
limitations on page 2 above. Final Act. 15 (citing Yu ¶ 31, Abstract); Ans.
4–5 (citing Ha, Figs. 6a–6c); see also Yu ¶¶ 32, 35, 40, 42, 56, 77 (teaching
weekly monitoring of operation and monthly bill periods).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Accordingly, we sustain the Examiner’s rejection of: (1) independent
claims 1, 17, and 18; and (2) dependent claims 2–6, 8, 10–12, 14–16, and 19
under 35 U.S.C. § 103.

Appeal 2020-002233
Application 14/677,792

7
CONCLUSION

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). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–6, 8, 12,
14, 15, 17–
19
103 Yu, Ha 1–6, 8, 12,
14, 15, 17–
19

10, 11 103 Yu, Ha, Rada 10, 11
16 103 Yu, Ha, Kishlock 16
Overall
Outcome
1–6, 8, 10–
12, 14–19