Ex Parte Cherukuri et al

Patent Trial and Appeal Board

Dec 19, 2016

12418570 (P.T.A.B. Dec. 19, 2016)

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.
12/418,570 04/04/2009 Sunil Cherukuri L-959642 8769
86421 7590 12/21/2016
Patent Partita 1 Omim - Pisien
EXAMINER
2816 Lago Vista Lane
Rockwall, TX 75032
BOOKER, KELVIN
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
12/21/2016 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):
peggsu @ cisco. com
PAIR_86421 @patcapgroup.com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUNIL CHERUKURI and MOHAMED KHALID
Appeal 2016-000507
Application 12/418,570
Technology Center 2100
Before ROBERT E. NAPPI, JOHNNY A. KUMAR, and ALEX S. YAP,
Administrative Patent Judges.
YAP, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1—19, 21—28, and 31.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellants, the real party in interest is Cisco Technology,
Inc. (App. Br. 2.)
2 Claims 20 and 30 were withdrawn previously. (Final Office Action
(mailed Mar. 28, 2014) (“Final Act.”) 1.) Claim 29 is objected to but would
be allowable if rewritten in independent form. {Id. at 1, 13—14; App. Br. 2.)
Appeal 2016-000507
Application 12/418,570
STATEMENT OF THE CASE
Introduction
Appellants’ invention “relates generally to energy conservation, and
more particularly, to network and presence aware intelligent lighting and
HVAC systems.” (Specification (filed Apr. 4, 2009) (“Spec.”) 11.) Claim 1
is illustrative, and is reproduced (with minor formatting changes) below:
1. A method, comprising:
monitoring communications activity of a network port,
wherein the network port is associated with one or more user
communications devices communicatively coupled to the
network port and the network port is further associated with an
environmental zone of a building;
detecting, during the monitoring, an amount of
communications traffic on the network port involving the one
or more user communications devices;
determining, from the amount of communications traffic
detected on the network port during the monitoring, that one or
more persons are using the user communications devices within
the environmental zone of the building, wherein the detected
amount of communications traffic corresponds to an amount of
communication traffic expected when at least one person is
present in the environmental zone and using the user
communications devices; and
determining a desired environmental service to provide to
the environmental zone based at least in part on determining
that one or more persons are using the user communications
devices based on the detected amount of communications
traffic.
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Application 12/418,570
Prior Art and Rejection on Appeal
The following table lists the prior art relied upon by the Examiner in
rejecting the claims on appeal:
Wiemeyer et al. US 7,734,572 B2 June 8, 2010
(“Wiemeyer”)
Claims 1—19, 21—28, and 31 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Wiemeyer. (See Final Act. 3—13.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We are not persuaded that the
Examiner erred in rejecting claims 1—19, 21—27, and 31. We are persuaded,
however, that the Examiner erred in rejecting claim 28.
“determining, from the amount of communications traffic detected. . . that
one or more persons are using the user communications devices within the
environmental zone of the building...”
With respect to claim 1, the Examiner finds that Wiemeyer anticipates
the claim. (Final Act. 3—4.) The Appellants, however, contend that
the sections of Wiemeyer cited . . . merely discuss examples of
various sensors (e.g., temperature sensors, card readers, etc.)
reporting their readings to a zone controller^ therefore], very
little “determining” appears to be performed by the zone
controller based on the communications from these sensors as
the signals of these sensors.
(App. Br. 12, emphasis added.) According to Appellants, “the detection has
already been established by the sensor and there is no need to determine
whether the amount of network activity from the sensor corresponds to an
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Application 12/418,570
amount that a user using the sensor would generate.” (Id. ) The Examiner
disagrees and finds that:
Wiemeyer [] focuses on monitoring and recording network
traffic associated with a variety of communication components,
whereby network activity is considered based on the
engagement of both system and user communication devices
coupled to network ports. However, based on monitored
activity associated with the user communication devices, the
system engages in energy saving functions and/or facilitates
system events to further support user activity in predefined
environments. Wiemeyer . . . further focuses on defining rule
sets and allocating network events in accordance with logged
data. Based on records, rule sets and received data, the system
is designed to act on determined network traffic (e.g., no
network activity determined from an IP camera (e.g., user
communication device), may turn lights off and lower room
temperature, whereas network activity associated with the
reading from a card reader, my [sic] turn lights on and activate
the HVAC system accordingly). In evaluating traffic over the
network, determination of traffic connected with at least one
user communication device (e.g., associated with at least one
person), constitutes the amount of traffic required to meet the
quantity of traffic requested in the claimed limitations.
(Ans. 13—14, emphasis added.)
We agree with the Examiner’s finding that Wiemeyer discloses the
limitation at issue and Appellants have not persuaded us that the Examiner
erred. (Final Act. 3—4, 11; Ans. 13—14.) For example, we do not agree with
Appellants’ contention that in Wiemeyer, “the detection has already been
established by the sensor and there is no need to determine whether the
amount of network activity from the sensor corresponds to an amount that a
user using the sensor would generate” because Wiemeyer discloses that the
use of a card reader can be used to control lighting and air conditioning.
(See, e.g., Wiemeyer 6:4—7 (“An example control action sequence may be
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Application 12/418,570
illuminating the lights and warming an area (HVAC on) in response to an
occupancy stimulus.”); 6:29—32 (“two related sequences, triggered
respectively by the occupancy sensor 170 and credential reader 130 stimuli,
influence the resulting system behavior.”); 6:59—63 (“card presentation at
credential reader 130 . . . enable the zone controller 100 to record the entire
sequence of resulting or related system actions, including the handling of the
occupancy sensor 170 and the entry lamp 180 earlier in time.”), emphasis
added.) Moreover, Appellants have not offered persuasive argument that the
Examiner’s interpretation is either overbroad or unreasonable. In their
Reply Brief, Appellants instead contend that the devices or sensors in
Wiemeyer are not “associated with any particular person.” (Reply 2-4.) To
the extent Appellants are contending that “user communication devices”
must be “associated with [a] person” we note that the claim requires “the
network port [be] associated with one or more user communication[]
devices” and not with a person. Claim 1 only requires “one or more persons
are using the user communication[] devices,” and as discussed above,
Wiemeyer, for example, discloses a person using a card reader.
Furthermore, this is new arguments that is raised in Reply and is deemed
waived. 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
raised in the [EJxaminer’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”); see also In re Hyatt, 211 F.3d 1367,
1373 (Fed. Cir. 2000) (noting that an argument not first raised in the brief to
the Board is waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834,
1837 (BPAI 2010) (informative) (explaining that arguments and evidence
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Application 12/418,570
not timely presented in the principal Brief, will not be considered when filed
in a Reply Brief, absent a showing of good cause explaining why the
argument could not have been presented in the principal Brief); Ex parte
Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) (“[p]roperly
interpreted, the Rules do not require the Board to take up a belated argument
that has not been addressed by the Examiner, absent a showing of good
cause.”).
“User Communication Devices ”
Appellants also contend that the “sensors envisioned and used in
Wiemeyer (e.g., security cameras, door sensors, key card readers, etc.) are
not ‘user communications devices.’” (App. Br. 12—13; Reply 3.)
Appellants, however, do not offer any construction as to what are “user
communications devices.” The Examiner’s rejection appears to construe
“user communications devices” as devices that allow users to communicate
with the network. The Appellants have not offered persuasive argument that
the Examiner’s interpretation is either overbroad or unreasonable. As an
example, we agree with the Examiner’s finding that devices such as security
cameras, door sensors, and key card readers, in Wiemeyer, are user
communication devices because, these devices, which are connected to the
network, allow users to communicate with the network.
For the foregoing reasons, we are not persuaded of Examiner error in
the rejection of claim 1. Thus, we sustain the 35 U.S.C. § 102 rejection of
claim 1, as well as independent claims 8, 10, 17, 19, and 23, which are not
argued separately. (App. Br. 10.) We also sustain the 35 U.S.C. § 102
rejection of claims 2—7, 9, 11—16, 18, 22, 24—27, and 31, which depend on
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Application 12/418,570
either claims 8, 10, 17, 19, and 23, and are not argued separately. (Id. at 10—
13.)
Claim 28
Claim 28 recites, in part, that “the one or more user communications
devices comprise one or more of a desktop computer and a laptop
computer.” The Examiner finds that Figures 8 and 9 and column 8, lines 25
to 29 of Wiemeyer disclose the method of claim 28. (Final Act. 13.)
Appellants, however, contend otherwise. (App. Br. 12—13; Reply 3.) We
agree with Appellants that the portions of Wiemeyer cited by the Examiner
do not disclose the method of claim 28. As such, we do not sustain the
Examiner’s 35 U.S.C. § 102 rejection of claim 28 because the Examiner has
failed to point to sufficient evidence showing that Wiemeyer discloses the
method of claim 28 or make any findings that it would have been obvious to
one of ordinary skill in the art that the devices or sensors in Wiemeyer can
be “one or more of a desktop computer and a laptop computer.”
DECISION
We affirm the decision of the Examiner to reject claims 1—19, 21—27,
and 31. We reverse the decision of the Examiner to reject claim 28.
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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