Dantressangle, Patrick et al.Download PDFPatent Trials and Appeals BoardApr 1, 202013781387 - (D) (P.T.A.B. Apr. 1, 2020) Copy Citation 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. 13/781,387 02/28/2013 Patrick Dantressangle DE920120150US2 9058 106324 7590 04/01/2020 IBM Corp. - Fishkill Drafting Center SVL 650 Harry Road, Almaden Research Center C4TA/J2B San Jose, CA 95120 EXAMINER TORRICO-LOPEZ, ALAN ART UNIT PAPER NUMBER 3683 NOTIFICATION DATE DELIVERY MODE 04/01/2020 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): fdciplaw@us.ibm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK DANTRESSANGLE, EBERHARD HECHLER, MARTIN A. OBERHOFER, and MICHAEL WURST Appeal 2018-007571 Application 13/781,3871 Technology Center 3600 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 3–7, and 9–12. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appeal 2018-007557 (Application 13/728,868) is related to this appeal. This appeal and its related appeal are directed to the same underlying inventions and issues. 2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as International Business Machines Corporation. Appeal Br. 3. Appeal 2018-007571 Application 13/781,387 2 CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer-implemented method comprising: mapping, by a computing device, first energy consumption data associated with a known change in demographic data for a first customer associated with a first household to a plurality of usage clusters defined within a multidimensional space; receiving, by the computing device via a network, second energy consumption data of a second customer associated with a second household that is generated by an electricity meter associated with the second customer and transmitted by the electricity meter via the network, wherein the second energy consumption data of the second customer indicates amounts of energy consumed by the second customer; generating, by the computing device and based on the second energy consumption data of the second customer, a plurality of subseries, wherein a first subseries included in the plurality of subseries comprises the second energy consumption data of the second customer that corresponds to a time interval prior to a particular time and a second subseries included in the plurality of subseries comprises the second energy consumption data of the second customer that corresponds to a time interval subsequent to the particular time; comparing, by the computing device, the first energy consumption data of the first customer with the second energy consumption data of the second customer, including comparing the first subseries with a first subset of the plurality of usage clusters and the second subseries with a second subset of the plurality of usage clusters; detecting, by the computing device, a potential change in demographic data about the second customer associated with the second household at the particular time, based at least in part on the demographic data about the second customer, the Appeal 2018-007571 Application 13/781,387 3 first and second subseries, and the plurality of usage clusters, including the comparison of the first energy consumption data with the second energy consumption data, wherein the potential change in demographic data represents a potential change between a first value of the demographic data about the second customer corresponding to the time interval prior to the particular time and a second value of the demographic data about the second customer corresponding to the time interval subsequent to the particular time; and outputting, by the computing device, based at least in part on the detecting, at least one demographic change report associated with the demographic data about the second customer, wherein the at least one demographic change report indicates the particular time at which the potential change in the demographic data about the second customer, between the first value and the second value, was detected based on the second energy consumption data. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Fan et al. (Fan) US 2005/0278324 A1 Dec. 15, 2005 Carey et al. (Carey) US 2006/0161450 A1 July 20, 2006 Adabala et al. (Adabala) US 2011/0310088 A1 Dec. 22, 2011 Moitra et al. (Moitra) US 8,219,583 B2 July 10, 2012 Shetty et al. (Shetty) US 2013/0030732 A1 Jan. 31, 2013 REJECTIONS 1. Claims 1, 3–7, and 9–12 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception to patentable subject matter without significantly more. Final Act. 2–4. Appeal 2018-007571 Application 13/781,387 4 2. Claims 1, 3, 4, 9, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Carey and Fan. Final Act. 5–18. 3. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Carey, Fan, and Adabala. Final Act. 18–20. 4. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Carey, Fan, and Moitra. Final Act. 20–21. 5. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Carey, Fan, and Shetty. Final Act. 21–23. OPINION Rejection under 35 U.S.C. § 101 Legal Principles An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s two-step framework, described in Mayo and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Appeal 2018-007571 Application 13/781,387 5 Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive Appeal 2018-007571 Application 13/781,387 6 concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. In January 2019, the U.S. Patent and Trademark Office (USPTO) published revised guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” Id. at 51; see also October 2019 Update at 1. Under the 2019 Revised Guidance and the October 2019 Update, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (“Step 2A, Prong One”); and 3 In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”) (available at https://www.uspto.gov/sites/default/files/ documents/peg_oct_2019_update.pdf). Appeal 2018-007571 Application 13/781,387 7 (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4 2019 Revised Guidance, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. 2019 Revised Guidance, 84 Fed. Reg. at 52–56. Prong One of Step 2A The Examiner summarizes the claims as being directed to “a series of steps instructing how to predict a demographic characteristic for a customer based on consumption data,” which are comparable to other abstract ideas identified by courts as either an idea of itself or a mathematical relationship/formula. Final Act. 2–3. Appellant argues that the claims do not recite an idea of itself (i.e., an idea standing alone such as an un- instantiated concept, plan, or scheme, as well as a mental process that can be performed in the human mind or by a human using a pen and paper) because the claims explicitly recite a requirement that a computing device receives 4 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See 2019 Revised Guidance - Section III(A)(2), 84 Fed. Reg. 54–55. Appeal 2018-007571 Application 13/781,387 8 energy consumption data transmitted by an electricity meter via a network, as well as outputs at least one demographic change report. See Appeal Br. 8. Appellant additionally argues the claims do not recite a mathematical algorithm, relationship, formula, or algorithm per se because the claims recite a specific practical implementation of determining a potential change in demographic data which makes use of mathematical algorithms and formulas. See Appeal Br. 9. Under prong one of step 2A, we first look to whether the claim recites any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activities, or mental processes). 2019 Revised Guidance, 84 Fed. Reg. at 52–54. To this end, treating independent claim 1 as representative, claim 1 recites: • (1) “mapping, by a computing device, first energy consumption data associated with a known change in demographic data for a first customer associated with a first household to a plurality of usage clusters defined within a multidimensional space;” • (2) “receiving, by the computing device via a network, second energy consumption data of a second customer associated with a second household that is generated by an electricity meter associated with the second customer and transmitted by the electricity meter via the network, wherein the second energy consumption data of the second customer indicates amounts of energy consumed by the second customer;” • (3) “generating, by the computer device and based on the second energy consumption data of the second customer, a plurality of subseries, wherein a first subseries included in the plurality of subseries comprises the second energy consumption Appeal 2018-007571 Application 13/781,387 9 data of the second customer that corresponds to a time interval prior to a particular time and a second subseries included in the plurality of subseries comprises the second energy consumption data of the second customer that corresponds to a time interval subsequent to the particular time;” • (4) “comparing, by the computing device, the first energy consumption data of the first customer with the second energy consumption data of the second customer, including comparing the first subseries with a first subset of the plurality of usage clusters and the second subseries with a second subset of the plurality of usage clusters; ” • (5) “detecting, by the computer device, a potential change in demographic data about the second customer associated with the second household at the particular time, based at least in part on the demographic data about the second customer, the first and second subseries, and the plurality of usage clusters, including the comparison of the first energy consumption data with the second energy consumption data, wherein the potential change in demographic data represents a potential change between a first value of the demographic data about the second customer corresponding to the time interval prior to the particular time and a second value of the demographic data about the second customer corresponding to the time interval subsequent to the particular time; and” • (6) “outputting, by the computer device, based at least in part on the detecting, at least one demographic change report associated with the demographic data about the second Appeal 2018-007571 Application 13/781,387 10 customer, wherein the at least one demographic change report indicates the particular time at which the potential change in the demographic data about the second customer, between the first value and the second value, was detected based on the second energy consumption data”. Several of these limitations are directed to collecting, analyzing, organizing information through mathematical relationships. For example, the limitation “receiving . . . second energy consumption data” is a data gathering step that may be performed by the human mind. The limitations “comparing . . . the first energy consumption data . . . with the second energy consumption data,” and “detecting . . . a potential change in demographic data . . . based at least in part on the demographic data . . . and the comparison of the first energy consumption data with the second energy consumption data” are analysis steps that may also be performed by the human mind. Further, the limitations “mapping . . . first energy consumption data associated with a known change in demographic data . . . to a plurality of usage clusters defined within a multidimensional space,” and “comparing . . . the first subseries with a first subset of the plurality of usage clusters and the second subseries with a second subset of the plurality of usage clusters” are organization steps involving mathematical relationships that may also be performed by the human mind. Mental processes are a category of activities that the Guidance recognizes as constituting an abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52. Mathematical relationships are also a category of activities that the Guidance recognizes as constituting an abstract idea. See id. “Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract.” RecogniCorp, LLC v. Appeal 2018-007571 Application 13/781,387 11 Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017). Thus, under prong one of step 2A we determine the claims recite an abstract idea. Prong Two of Step 2A The Examiner finds that the additional elements of claim 1 other than the recited abstract idea either recite: (a) hardware at a high level of generality that generally links the abstract idea to a particular technological environment (i.e., a processor/computer); (b) extra-solution activities that do not provide significantly more than the abstract idea (i.e., data gathering or data output activities); or (c) an improvement to the underlying business process rather than an improvement in the functioning of the computer itself or any other technology. See Final Act. 4. Appellant argues the claims recite a specific way of detecting a potential change in demographic data, rather than merely recited a result or effect produced, and thus, the claims are similar to the claims in McRO, Inc. v. Bandai Namco Games America Inc., et al., 837 F.3d 1299 (Fed. Cir. 2016), which were found not to be directed to an abstract idea. See Appeal Br. 9–10. Appellant further argues the claims recite something “significantly more” than an alleged abstract idea because the claims do not seek a monopoly over the alleged abstract idea and instead recite a specific way of detecting a potential change in demographic data. See Appeal Br. 10–12. Under prong two of step 2A of the 2019 Revised Guidance we determine whether the claim as whole integrates the recited abstract idea into a practical application of the abstract idea. A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception. To evaluate whether the claims integrate Appeal 2018-007571 Application 13/781,387 12 the abstract idea into a practical application, we identify whether there are any additional elements recited beyond the abstract idea, and evaluate those additional elements individually and in combination. Some exemplary considerations laid out by the Supreme Court and the Federal Circuit indicate that an additional element that integrates an abstract idea into a practical application can include (i) an improvement in the functioning of a computer or to another technological field, (ii) an application of the judicial exception with, or by use of, a particular machine, (iii) a transformation or reduction of a particular article to a different state or thing, or (iv) a use of the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. See MPEP § 2106.05(a)–(c), (e)–(h). Reviewing the claim limitations as a whole, we determine claim 1 does not recite additional elements that integrate the abstract idea into a practical application. In particular, we find the claim limitations “computing device,” and “network,” merely link the recited abstract idea to the technological environment of networks and computers. As to the aforementioned limitations, neither the claim nor the Specification indicates any improvements to the functionality of the recited components. Instead, as claimed, the recited components are used in their ordinary manner to implement the series of steps for predicting a potential change in demographic data for a customer based on consumption data. Thus, the usage of the recited components improve the underlying abstract idea rather than the underlying computer itself or another technology. Further, we find the claim limitations “receiving . . . via a network . . . energy consumption data . . . generated by an electricity meter . . . and transmitted by the electricity meter via the network,” and “outputting . . . at least one Appeal 2018-007571 Application 13/781,387 13 demographic change report associated with the demographic data,” merely recite extra-solution activities (i.e., data gathering and data output activities) which does not provide significantly more than the underlying abstract idea. We are not persuaded by Appellant’s argument that the claims at issue in this appeal are similar to the claims at issue in McRO. In McRO, the rules were “rendered in a specific way: as a relationship between sub-sequences of phonemes, timing, and the weight to which each phoneme is expressed visually at a particular timing[.]” McRO, 837 F.3d at 1315. It was the “structure of the limited rules” that were “limited to a specific process for automatically animating characters using particular information and techniques” that led the Federal Circuit to conclude that the claims were “directed to a patentable, technological improvement.” McRO, 837 F.3d at 1316. Here, Appellant fails to identify any rules recited in the claims that limit the claimed method in any way that improves technology. Step 2B of the Guidance The Examiner further finds the additional elements of claim 1 other than the recited abstract idea are directed to well-understood, routine, and conventional activity (e.g., receiving and transmitting data over a network). See Final Act. 4; see also Ans. 6–7. Appellant argues the claims include specific limitations other than what is well-understood, routine, and conventional, and which confine the claim to a particular useful application. See Appeal Br. 12–13. Under step 2B of the 2019 Revised Guidance we analyze the claims to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). Considerations that are evaluated with respect to step 2B include determining whether the claims as a whole add a specific limitation or Appeal 2018-007571 Application 13/781,387 14 combination of limitations that are not well-understood, routine, conventional activity in the field. We determine that the claimed “computing device,” and “network,” as recited in claim 1, operate in a well-understood, routine, and conventional manner. For example, Appellant’s Specification describes that a customer data management system “includes one or more computing devices (e.g., computing servers that provide operating environments for various software modules).” Spec. ¶ 26. Appellant’s Specification further describes that the disclosed process for detecting a potential change in demographic data may be implemented “within one or more processors, including one or more microprocessors, digital signal processors (DSPs), application specific integrated circuits (ASICs), field programmable gate arrays (FPGAs), or any other equivalent integrated or discrete logic circuitry, as well as any combinations of such components.” Spec. ¶ 67. We find this description to be consistent with the well-understood, routine, conventional uses of the aforementioned claim limitations. Accordingly, we sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 101, and also claims 3–7 and 9–12, for which Appellant does not make any additional arguments. See Appeal Br. 6–13. Rejection under 35 U.S.C. § 103(a) Claim 1 recites, inter alia: mapping, by a computing device, first energy consumption data associated with a known change in demographic data for a first customer associated with a first household to a plurality of usage clusters defined within a multidimensional space; . . . comparing, by the computing device, the first energy consumption data of the first customer with the second energy Appeal 2018-007571 Application 13/781,387 15 consumption data of the second customer, including comparing the first subseries with a first subset of the plurality of usage clusters and the second subseries with a second subset of the plurality of usage clusters; detecting, by the computing device, a potential change in demographic data about the second customer associated with the second household at the particular time, based at least in part on the demographic data about the second customer, the first and second subseries, and the plurality of usage clusters, including the comparison of the first energy consumption data with the second energy consumption data, wherein the potential change in demographic data represents a potential change between a first value of the demographic data about the second customer corresponding to the time interval prior to the particular time and a second value of the demographic data about the second customer corresponding to the time interval subsequent to the particular time; Appeal Br. 26–27. The Examiner finds the combination of Carey and Fan teaches or suggests the aforementioned limitations of claim 1, where Carey discloses certain portions of the limitations, and where Fan discloses other portions of the limitations. More specifically, as found by the Examiner, Carey discloses an occupancy module of an energy tracking and reporting system that tracks energy consumption data and occupancy data for an owner or tenant of a property and notifies a user of peaks in energy consumption correlated to specific occupancy (i.e., number of occupants) of the property. See Final Act. 5, 7–8 (citing Carey ¶¶ 22, 43); see also Ans. 8, 11–12. Thus, as found by the Examiner, Carey’s occupancy module teaches or suggests: • (1) “mapping, by a computing device, . . . energy consumption data associated with a known change in demographic data for a . . . customer associated with a . . . household to a [usage cluster],” as recited in claim 1; and Appeal 2018-007571 Application 13/781,387 16 • (2) “detecting, by the computing device, a potential change in demographic data about the . . . customer associated with the . . . household at the particular time based at least in part on demographic data about the customer,” as recited in claim 1. See Final Act. 5, 7–8; see also Ans. 8. As further found by the Examiner, Fan discloses pattern-based clustering methods used to identify sets of customers/clients with similar behavior. See Final Act. 9 (citing Fan at Abstract, ¶ 8). As disclosed in Fan, large data sets of distinct objects are clustered under different subsets of conditions, where: the large data sets are clustered within a Cartesian plane including an X-axis and a Y-axis; the X-axis represents a set of conditions; the Y-axis represents object values under those conditions; and similar features among the objects are identified under different subsets of conditions. See Fan ¶¶ 5, 15, 26, 55. Thus, as found by the Examiner, Fan’s pattern-based clustering teaches or suggests: • (1) “mapping . . . first . . . consumption data . . . for a first customer . . . to a plurality of usage clusters defined within a multidimensional space,” as recited in claim 1; • (2) “comparing, by the computing device, the first . . . consumption data of the first customer with second . . . consumption data of the second customer, including comparing the first subseries with a first subset of the plurality of usage clusters and the second subseries with a second subset of the plurality of usage clusters,” as recited in claim 1; and • (3) “detecting . . . a [feature] about the second customer . . . at the particular time based at least in part on . . . the first and Appeal 2018-007571 Application 13/781,387 17 second subseries, and the plurality of usage clusters, including the comparison of the first . . . consumption data with the second . . . consumption data,” as substantially recited in claim 1. See Final Act. 9–11; see also Ans. 8–9. As additionally found by the Examiner, it would have been obvious to modify Carey’s occupancy module to include Fan’s pattern-based clustering with the motivation of grouping or classifying objects by pattern similarity to identify objects (e.g., customers) that exhibit similar patterns in subspace. See Final Act 11 (citing Fan at Abstract, ¶ 8). As found by the Examiner, one of ordinary skill in the art would have recognized that applying the pattern-based clustering of Fan to the system disclosed in Carey would have yielded predictable results and resulted in an improved system that would allow the identification of demographic changes by clustering consumption series. See Final Act. 11–12; see also Ans. 13–14. Appellant argues Carey does not teach or suggest that an owner of a property is “a first customer associated with a first household,” as recited in claim 1, because Carey teaches that the property is occupied by tenants, and because Carey does not teach or suggest whether such tenants are part of “a first household” that is associated with an owner. See Appeal Br. 14–15. We are not persuaded the Examiner erred. Carey discloses that the occupancy module tracks the number of occupants at a property, and further discloses that an occupant can be an owner of the property or a tenant of the property. See Carey ¶¶ 22, 42. Thus, contrary to Appellant’s argument, Carey does teach that an owner of property can be an occupant whose occupancy data is tracked, and further teaches that a tenant is also considered to be associated with the property. Thus, we agree with the Appeal 2018-007571 Application 13/781,387 18 Examiner that Carey teaches “a first customer associated with a first household,” as recited in claim 1. Appellant further argues that Carey teaches the occupancy module tracks the occupancy of tenants, and that a number of occupants at a property does not teach or suggest “a change in demographic data for a first customer associated with a first household,” as recited in claim 1. See Appeal Br. 15. This argument is not persuasive either. Appellant’s Specification expressly states that an example of demographic data includes “the number of customers in [a household].” Spec. ¶ 17, emphasis added. Thus, we agree with the Examiner that Carey’s disclosure of an occupancy module tracking a change in the number of occupants in a property teaches “a change in demographic data for a first customer associated with a first household,” as recited in claim 1. Appellant additionally argues that Carey’s disclosure of tracking spike in energy usage that results from peak occupancy does not teach or suggest “mapping, by a computing device, first energy consumption data . . . to a plurality of usage clusters defined within a multidimensional space,” as recited in claim 1. See App. Br. 16. Appellant further argues Fan does not cure Carey’s deficiency because Fan does not teach or suggest “first energy consumption data,” “known change in demographic data,” or “a first customer associated with a first household,” and Fan’s pattern-based clustering also does not teach or suggest “mapping . . . first energy consumption data . . . to a plurality of usage clusters defined within a multidimensional space,” as recited in claim 1. See id. We are not persuaded by this argument either because the argument only addresses the references individually rather than the combination of references. One cannot show non-obviousness by attacking references individually when the Appeal 2018-007571 Application 13/781,387 19 rejection is based on a combination of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner relied upon Carey’s occupancy module that tracks energy consumption data correlated to specific occupancy data of occupants (e.g., tenants) of a property for teaching or suggesting the claimed “[m]apping, by a computing device, first energy consumption data associated with a known change in demographic data for a first customer associated with a first household.” See Final Act. 5; see also Ans. 8. The Examiner further relied upon Fan’s pattern-based clustering for teaching “mapping . . . data . . . for a first customer . . . to a plurality of usage clusters defined within a multidimensional space,” as recited in claim 1. See Final Act. 11; see also Ans. 9. Thus, as found by the Examiner, it is the combination of Carey and Fan that teaches or suggests the mapping limitation of claim 1. Appellant’s argument fails to address the combination, and, thus, is not persuasive. Appellant further argues Carey’s tracking of occupancy data includes comparing energy consumption of the same person corresponding to two different time intervals rather than “comparing, by the computing device, the first energy consumption data of the first customer with the second energy consumption data of the second customer,” as recited in claim 1. See Appeal Br. 18–19. Appellant further argues Fan does not teach or suggest “detecting, by the computing device, a potential change in demographic data,” as recited in claim 1. See Appeal Br. 19. This argument is also not persuasive of Examiner error because the argument only addresses the references individually rather than the combination of references. Specifically, while Carey does not explicitly describe comparing energy consumption of distinct occupants, Fan explicitly discloses applying pattern- Appeal 2018-007571 Application 13/781,387 20 based clustering to distinct data sets associated with distinct customers or clients in order to identify similar behavior and predict customers’ interest. See Fan ¶¶ 5, 8. Similarly, while Fan does not explicitly describe detecting changes in demographic data, Carey explicitly discloses detecting changes in occupancy data. Thus, as found by the Examiner, it is the combination of Carey and Fan that teaches or suggests the comparing and detecting limitations of claim 1. Appellant’s argument fails to address the combination, and, thus, is not persuasive. Appellant further argues the Final Office Action fails to establish a reason, with rational underpinning, that would have lead a person of ordinary skill in the art to modify a method disclosed by Carey in view of Fan to include each and every element of the claims. See Appeal Br. 22. More specifically, Appellant argues neither Carey nor Fan provide the stated motivation to combine Carey and Fan. See Appeal Br. 20–21. We are not persuaded by this argument either. We agree with the Examiner that Fan discloses a motivation for the combination because Fan expressly discloses that an advantage of using pattern-based clustering to analyze large data sets is the ability to identify sets of customers or clients with similar behavior so that one can predict customers’ interest and make proper recommendations. See Ans. 13–14 (citing Fan ¶ 8). Further, we also agree with the Examiner that the rationale to modify or combine the prior art does not have to be expressly stated in the prior art. See In re Fine, 837 F.2d 1071 (Fed. Cir. 1988). Instead, as correctly found by the Examiner, the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Further, if a technique has been used to improve one device and a person of ordinary skill in the art Appeal 2018-007571 Application 13/781,387 21 would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. See id. at 417. In light of this, we conclude the rationale provided by the Final Office Action for combining Carey and Fan is proper. Accordingly, we sustain the Examiner’s rejection of independent claim 1. We also sustain the rejection of dependent claims 3–7 and 9–12, as they are not separately argued by Appellant. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–7, 9–12 101 Eligibility 1, 3–7, 9–12 1, 3, 4, 9, 10, 12 103(a) Carey, Fan 1, 3, 4, 9, 10, 12 5, 6 103(a) Carey, Fan, Adabala 5, 6 7 103(a) Carey, Fan, Moitra 7 11 103(a) Carey, Fan, Shetty 11 Overall Outcome 1, 3–7, 9–12 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation