Ex Parte ADAMDownload PDFPatent Trial and Appeal BoardMay 13, 201612628624 (P.T.A.B. May. 13, 2016) Copy Citation 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 2 Appeal2014-008234 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. 3 Appeal2014-008234 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. 4 Appeal2014-008234 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 5 Appeal2014-008234 Application 12/628,624 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 6 Appeal2014-008234 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, 7 Appeal2014-008234 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. 8 Appeal2014-008234 Application 12/628,624 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 9 Appeal2014-008234 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. 10 Appeal2014-008234 Application 12/628,624 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 11 Copy with citationCopy as parenthetical citation