Ex Parte Adam

Patent Trial and Appeal Board

May 13, 2016

12628624 (P.T.A.B. May. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/628,624 12/01/2009
490 7590 05/17/2016
VIDAS, ARRETT & STEINKRAUS, PA
Richard A. Arrett
9531West78th Street
Suite 400
Eden Prairie, MN 55344
FIRST NAMED INVENTOR
Dirk ADAM
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.
H01.2B-14749-US01 6306
EXAMINER
CHANG, SUNRAY
ART UNIT PAPER NUMBER
2121
NOTIFICATION DATE DELIVERY MODE
05/1712016 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):
mail@vaslaw.com
rleaf@vaslaw.com
rarrett@vaslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIRK ADAM1
Appeal2014-008234
Application 12/628,624
Technology Center 2100
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-22. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We affirm-in-part.
1 Appellant identifies Natcon7 GmbH as the real party in interest. App.
Br. 3.
Appeal2014-008234
Application 12/628,624
STATEMENT OF THE CASE
Introduction
Appellant's invention is directed to energy generation using
renewable energy sources at a remote energy generation plant. Spec. 1-2.
In particular, "it is the object of the invention to provide a method and a
system for using renewable energy sources, which simplifies the planned use
of the renewable energy sources and improves the ability to plan and predict
the energy actually available." Spec. 2.
Claims 1 and 6 are representative of the subject matter on appeal and
are reproduced below with the disputed limitation emphasized in italics:
1. A method for using renewable energy sources, the method
comprising the following steps:
a) Producing a proposed schedule (20), in which for a
future time period subdivided into shorter time intervals,
presettings for the operation of the at least one remote energy
generation plant (10) in each of the shorter time intervals are
established; and transmitting the proposed schedule (20) to a
central control unit (24) via a computer network (22),
b) Producing a schedule (32) based on the proposed
schedule (20), wherein the schedule (32) includes presettings
for the operation of at least one remote energy generation plant
(10) which is operated by a renewable energy source, in each of
the shorter time intervals of the future time period,
c) Transmitting the schedule (32) from a central
control unit (24) to a remote control unit (36) at the location of
at least one remote energy generation plant (10), which controls
the operation thereof, via a computer network (34), and
d) Automatic control of the at least one remote
energy generation plant (10) by the remote control unit (36)
according to the schedule (32).
6. The method according to Claim 1, wherein when
producing the schedule (32) in the central control unit, a
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Application 12/628,624
comparison of the proposed schedule (20) takes place with a
forecast demand and the schedule (32) is produced, adapted to
the demand, optionally deviating from the proposed schedule
(20).
The Examiner's Rejections
1. Claims 1, 3, 6, 9, 10, 13, 14, 16, 17, and 20-22 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Andren et al.
(US 7,406,364 B2; July 29, 2008) ("Andren") and Weiss (US 6,681,156 Bl;
Jan. 20, 2004). Final Act. 3-8.2
2. Claims 2, 4, 5, 7, 8, 11, 12, 15, 18, and 19 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Andren, Weiss, and Emery
et al. (US 7,509,190 B2; Mar. 24, 2009) ("Emery"). Final Act. 8-12.
Issues on Appeal
1. Did the Examiner err in finding the combination of Andren and
Weiss teaches or suggests the disputed limitation of claim 1?
2. Did the Examiner err in finding Andren teaches or suggests, "a
comparison ... tak[ing] place" between a proposed schedule with a forecast
demand, as recited in claim 6?
2 In the introductory paragraph rejecting claims 1, 3, 6, 9, 10, 13, 14, 16, 17,
and 20-22, we note the Examiner inadvertently identified Andren as Emery
(although the Examiner correctly identified the Andren patent). Final Act. 3.
In the detailed rejection of these claims, the Examiner correctly identifies the
reference as Andren. See Final Act. 3-8. Appellant addressed the merits of
the rejection of these claims with respect to the Examiner's findings
regarding Andren. See App. Br. 7-12. We, therefore, find the Examiner's
typographical error to be harmless.
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Application 12/628,624
ANALYSIS3
Claims 1, 3, 9, 10, 13, 14, 16, 17, and 20--22
Appellant contends the Examiner erred in finding Andren teaches or
suggests "[a]utomatic control of the at least one remote energy generation
plant (10) by the remote control unit (36) according to the schedule (32)," as
recited in claim 1. App. Br. 8-12. In particular, Appellant asserts Andren
merely teaches a Power Supply Company sending control signals to a
remote power plant. App. Br. 8 (citing Andren, col. 6, 11. 41--49). Appellant
argues Andren's remote power plant is controlled by the Power Supply
Company rather than automatically by a remote control unit at the location
of the remote power plant. App. Br. 9-10 (citing Andren, col. 5, 1. 63-
col. 6, 1. 30, Figure 5). Appellant further argues Andren teaches or suggests
an operator, located at the Power Supply Company, communicates the
control signals to the remote power plant using a server. Reply Br. 4 (citing
Figure 5, item C).
We do not find Appellant's arguments persuasive of Examiner error.
The Examiner finds, and we agree, Andren teaches or suggests a remote
control unit at the location of at least one remote energy generation plant,
and automatic control of at least one remote energy generation plant by the
remote control unit according to a schedule. Final Act. 4 (citing Andren,
3 Throughout this Decision we have considered the Appeal Brief filed
January 8, 2014 ("App. Br."); the Reply Brief filed July 17, 2014 ("Reply
Br."); the Examiner's Answer mailed on May 20, 2014 ("Ans."); and the
Final Office Action ("Final Act.") mailed on June 12, 2013, from which this
Appeal is taken.
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Application 12/628,624
col. 4, 11. 7-14, col. 6, 11. 41--45, 48-50, and 56-59; Figures 1, 4, and 5).
Specifically, as relied on by the Examiner, Andren discloses:
Control signals that may be comprised in information C
shown in FIG. 1, 4 sent from the Power Supply Company to one
or more Power plants 6 including plants based on renewable
energy sources may be sent in a format compatible with Web
based standards. In particular the signal, a data communication
signal, is preferably compatible with XML, extensible Markup
Language, the Extensible Style Language (XSL) standard, or a
derivative thereof. Such signals may switch a power plant on or
off or in some other way change the power output level. FIG. 6
shows a schematic format for a data communication signal
shown as 61. . . . The data content 64 contained in the signal
comprises data means 65 to invoke a remote procedure call to a
change a Power Plant output or switch a Power Plant output on
or off.
Andren, col. 6, 11. 41-59.
As the Examiner explains, because Andren's remote power plant may
receive control signals in the form of a "Markup Language," which is well-
known to be used by, for example, computing devices, "there is obvious[ly]
a device, inside or near the power generator, to receive the signal" and "a
switch can be used to 'control' the power generator on/off or tuning the
output level, based on the 'signal."' Ans. 11 (citing Andren, col. 6, 11. 41-
49; Figures 1 and 5). The Examiner further notes, according to Appellant's
Specification, "operation of the remote energy production plant may be very
simple, namely merely consisting of on/ off information." Ans. 11 (citing
Spec. 4 ). Thus, Andren, in disclosing sending control signals to a power
plant, responsible for invoking a remote procedure call to switch the power
plant's output on or off, teaches or suggests a device at the location of the
power plant to receive the control signals, and switch the power plant's
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output on or off Additionally, the Examiner finds, and we agree, Andren's
use of a remote procedure call (see Andren, col. 6, 11. 56-59) teaches or
suggests automatic control of the power plant to switch the output of the
power plant on or off. Ans. 3. Thus, we agree with the Examiner that
Andren teaches or suggests the automatic control of a power plant (the
claimed "at least one remote energy generation plant") by a device at the
location of the power plant (the claimed "remote control unit") according to
a remote procedure call to on or off the power plant's output (the claimed
"schedule"). See Ans. 2--4.
Appellant further contends the Examiner's "proposed combination [of
Andren and Weiss] is inappropriate." App. Br. 11-12. In particular,
Appellant asserts:
( 1) the direct/instant control of the power plants, as suggested by
Andren, points away from using the schedules of Weiss which are
transmitted to the remote power plants in advance;
(2) if the contract negotiation scheme of Weiss were adopted by
Andren, each energy supplier would be operated according to its own
plans, which would take into account data provided by a central
system, but would not be controlled via a remote controller according
to a schedule transmitted from a central control unit, contrary to the
instant claims;
(3) there is no motivation to integrate the schedules of Weiss in
Andren's system, because Weiss suggests using schedules only as a
basis for the contracts to be formed, i.e. for business purposes. The
instant claims, however, recite that the remote energy generation plant
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Application 12/628,624
is under automatic control by the remote control unit according to the
schedule.
App. Br. 11-12.
It is well settled that mere attorney arguments and conclusory
statements, which are unsupported by factual evidence, are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is
not evidence). We are unpersuaded of Examiner error because Appellant
does not provide persuasive argument or evidence to support its assertion
that Weiss's schedules could not be applied to the schedules as taught by
Andren. In particular, the Examiner relies upon Andren to teach, inter alia,
producing a proposed schedule and operating the energy plant in accordance
with the proposed schedule. Final Act. 4 (citing Andren, col. 4, 11. 7-14, 41-
45, 48-50, and 56-59; Figures 1, 4, and 5). The Examiner relies upon Weiss
to teach a schedule showing different power at different times for planning
energy supply. Final Act. 5 (citing Weiss, col. 1, 11. 9-15, col. 7, 11. 47-50,
col. 8, 11. 19-25, col. 12, 11. 27-30, 46-50, col. 14, 11. 54--15:4, col. 18, 11.
22-32, and Figure 12).
"A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant." In re Kubin, 561F.3d1351, 1357
(Fed. Cir. 2009) (citation omitted). Contrary to Appellant's assertions,
Andren does not teach away from transmitting schedules to a remote power
plant in advance, but instead suggests a transmitted remote procedure call to
a power plant occurs before turning on or off the power plant's output and,
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Application 12/628,624
therefore, in advance. Thus, we are not persuaded by Appellant's arguments
that Andren teaches away from being combined with the scheduling
teachings of Weiss.
Additionally, we find the Examiner has set forth an articulated
reasoning with rational underpinning to combine the references, i.e., to
incorporate "the teaching of Andr[ e Jn to include 'shorter time intervals in
future time period' in the schedules, for the purpose of planning energy
supply." Final Act. 5 (quoting Weiss, col.I, 11. 9-15) (emphasis omitted).
See also KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re
Kahn, 441 F.3d 977, 978 (Fed. Cir. 2006)). We agree with the Examiner's
findings and conclusions and adopt them as our own.
For the reasons discussed supra, we sustain the rejection of
independent claim 1. For similar reasons, we sustain the rejection of
independent claim 144 together with the rejection of dependent claims 3, 9,
10, 13, 16, 17, and 20-22, which were not argued separately.
Claims 2, 4, 5, 7, 8, 11, 12, 15, 18, and 19
Appellant contends Emery, as relied upon by the Examiner, is directed
to modifying a schedule so that the actual output of an energy plant is as
close as possible to the schedule in order to minimize penalties. App.
Br. 13. In other words, "Emery modifies the schedule rather than modifying
the operation of the plant." App. Br. 13. Appellant additionally argues
4 Additionally, we note the language from claim 14 is silent as to whether a
remote control unit controls at least one remote energy generation plant's
operation automatically. Contrary to Appellant's argument, the remote
control unit "may control the operation thereof automatically," as recited in
claim 14.
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because Andren teaches modifying the operation of a remote power plant
and Emery teaches modifying a schedule, "Emery would lead one away
from receiving an updated schedule from a central control unit and
modifying the operation of a remote energy generation plant." App. Br. 13-
14 (citing Emery i-fi-121-22).
We are unpersuaded of Examiner error. The Examiner finds, and we
agree, Emery teaches, inter alia, forecasts of operating conditions being
taken into account in the generation of power. See Final Act. 9-10
(regarding the rejection of claims 2 and 15). The Examiner also explains it
would have been obvious to an ordinarily-skilled artisan to modify Andren' s
operation of a remote power plant with Emery's teaching of considering
forecasts of operating conditions "for the purpose of minimizing economic
and compliance penalties which may arise from large deviations between the
actual electric output of an Intermittent Generator and its scheduled, or
estimated, output maintained with the grid controller." Final Act. 10 (citing
Emery, col. 1, 11. 7-12). Appellant does not provide sufficient persuasive
evidence or argument to rebut the Examiner's findings.
Appellant also makes generalized statements that the proposed
combination of Andren, Weiss, and Emery would not render obvious claims
2, 4, 5, 7, 8, 11, 12, 15, 18, and 19. App. Br. 14. Appellant asserts:
Emery does not disclose a remote energy generation plant which
is operated by a renewable energy source and a remote control
unit at the location of the at least one remote energy generation
plant where the remote control unit may control the operation of
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Application 12/628,624
the remote energy generation plant according to a
predeterminable schedule.
App. Br. 14.
We are not persuaded by Appellant's assertions because they are not
responsive to the Examiner's findings and rejection. See Final Act. 3-12.
For the reasons discussed supra, we find Appellant's arguments
unpersuasive of Examiner error. Accordingly, we sustain the rejection of
dependent claims 2, 4, 5, 7, 8, 11, 12, 15, 18, and 19.
Claim 6
Claim 6, which depends from claim 1, adds the limitation that "a
comparison of the proposed schedule (20) takes place with a forecast
demand and the schedule (32) is produced." Appellant contends the
Examiner erred in finding Andren teaches this limitation because Andren is
silent about any such comparison. App. Br. 12. As set forth infra, we agree
with Appellant's contention.
Rather than teaching a comparison, as claimed, the Examiner explains
Andren "takes consumer demand into consideration when returning
information and/or control signal for the remote power plant." Ans. 12.
However, the Examiner has not provided citation to disclosure of or
adequately explained how Andren teaches or suggests a comparison taking
place between a proposed schedule with a forecast demand, as required in
claim 6. On this record, we disagree with the Examiner's findings that
Andren teaches or suggests "a comparison of the proposed schedule (20)
takes place with a forecast demand." See Ans. 8.
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Accordingly, for the reasons discussed supra, we do not sustain the
Examiner's rejections of dependent claim 6.
DECISION
We affirm the Examiner's decision to reject claims 1-5 and 7-22.
We reverse the Examiner's decision to reject claim 6.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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