Ex Parte Cumeralto et al

Patent Trial and Appeal Board

Dec 12, 2014

11985337 (P.T.A.B. Dec. 12, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SCOTT CUMERALTO and RICHARD DEVRIES
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Appeal 2012-006663
Application 11/985,337
Technology Center 3600
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Before ROBERT E. NAPPI, JASON V. MORGAN, and
JOHN F. HORVATH, Administrative Patent Judges.

HORVATH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-006663
Application 11/985,337

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STATEMENT OF THE CASE
Appellants request we review the rejection of claims 2–8 under
35 U.S.C. § 134. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

SUMMARY OF THE INVENTION
The invention is directed to an apparatus for collecting and displaying
consumption data from a utility meter. Spec. 1:14–15.
Claim 2, reproduced below, is representative of the claimed subject
matter:
2. An apparatus for collecting and displaying consumption data
for use by a user of a utility service, the apparatus being
configured to communicate with at least one utility metering
device endpoint adapted to transmit utility consumption data,
said apparatus comprising:
communication circuitry configured to receive
transmitted utility consumption data;
a display adapted to display the utility consumption data
to a user;
control circuitry operably coupled to the communication
circuitry and display to control the receipt and display of the
utility consumption data to a user;
power circuitry operably coupled to the control circuitry
to regulate a flow of power thereto; and
a repeater adapted to propagate the transmitted utility
consumption data from the endpoint to the communication
circuitry.

REJECTION
Claims 2–8 stand rejected under 35 U.S.C §103(a) in view of
Ducharme.1 Ans. 4.

1 U.S. Patent No. 6,956,500 B1, issued Oct. 18, 2005.
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ISSUES AND ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We are not persuaded by
Appellants’ arguments, and affirm the Examiner’s rejections for the
following reasons.
I. Whether Ducharme transmits utility consumption data by
transmitting the rotational speed of a utility meter disk.

Appellants first argue the Examiner erred in rejecting claim 2 because
(a) Ducharme’s disclosure of transmitting and receiving the rotational speed
of a utility meter disk does not teach or suggest receiving transmitted utility
consumption data, App. Br. 7; (b) the Examiner used improper hindsight to
identify Ducharme’s utility disk rotation speed data as utility consumption
data, App. Br. 8–9; and (c) it would not have been obvious to use a repeater
to repeat utility consumption data because Ducharme does not transmit
utility consumption data. App. Br. 6–7.
The Examiner finds the Specification does not define “utility
consumption data,” and concludes its broadest reasonable interpretation is
therefore “data in any form that is representative of utility consumption,”
including final values for utility consumption and “values that can be used to
derive the final value[s].” Ans. 6. The Examiner further finds Ducharme’s
utility disk rotation speed is utility consumption data because it can be
converted into and displayed as the amount of utility consumed. Id. at 6–7
(finding Ducharme’s Figure 8 “clearly shows consumption values in both
KwH [kilowatt hours] and dollar values”). The Examiner also finds the use
of repeaters was well known in the art, and therefore it would have been
obvious to a person of ordinary skill in the art to use a repeater to repeat the
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transmission of Ducharme’s utility disk rotation speed data to extend the
transmission range. Ans. 5. We agree with the Examiner, and adopt his
findings as our own.
Appellants have not directed us to a definition of utility consumption
data in the Specification, and we find no such definition. Instead, we find
the Specification uses the term to refer to various types of data that can be
received from various types of utility meters including water, gas and
electricity meters. Spec. 6:23–7:2. This data can include time-of-use and
other forms of data generated by an ERT (encoder/receiver/transmitter)
attached to a utility meter. Spec. 8:7–9, Fig. 5A. Consequently, we agree
with the Examiner that the broadest reasonable interpretation of utility
consumption data is data in any form that is representative of utility
consumption, including data that can be converted into final values of utility
consumption. Ans. 6.
Moreover, because we agree with the Examiner’s interpretation of
utility consumption data, we also agree with the Examiner’s findings that
Ducharme’s utility disk rotation speed data is utility consumption data, and
that it would have been obvious to use a repeater to repeat Ducharme’s
transmission of utility disk rotation speed data to extend its range. Ans. 5–7.
As to Appellants’ argument that the Examiner used improper
hindsight to reject the claims, we find it unpersuasive. The Examiner neither
cited nor relied on the Specification to find Ducharme teaches transmitting
utility disk rotation speed data or displaying utility consumption based on
that data. See Ans. 4–8. Rather, the Examiner found the broadest
reasonable interpretation of utility consumption data consistent with the
Specification was “data in any form that is representative of utility
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consumption,” and Ducharme’s utility disk rotation speed data was such a
representative form of data. Id. at 6–7. Such findings are not the product of
improper hindsight. See In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983)
(finding “in proceedings before the PTO, the claims in an application are to
be given their broadest reasonable interpretation consistent with the
specification”); In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971)
(finding an obviousness determination is not based on hindsight when “it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not include
knowledge gleaned only from applicant’s disclosure”).

II. Whether Ducharme receives and displays the same utility
consumption data.

Appellants next argue the Examiner erred in rejecting claim 2 because
it recites an apparatus comprising “circuitry configured to receive
transmitted utility consumption data; [and] a display adapted to display the
utility consumption data to a user,” whereas Ducharme teaches receiving
disk rotation speed data and displaying utility cost data, which are different
things since they require a conversion from the received speed data to the
displayed cost data. Reply Br. 2–3 (emphasis added).
Appellants raise this argument for the first time in the Reply, and fail
to explain why “good cause” exists for the Board to consider it, especially
given Appellants’ admission they have known the Examiner found
Ducharme teaches receiving “meter data” yet displaying “consumption data”
since at least the Final Action. See Reply Br. 2. Consequently, we find
Appellants have waived this argument. See Ex parte Borden, 93 USPQ2d
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1473, 1476 (BPAI 2010) (informative) (“When new issues have been raised
by the Appellant but not addressed by the Examiner, the Board, unless good
cause is shown, will not consider those new issues.”).
Moreover, even if not waived, we are not persuaded by Appellants’
argument. First, as noted supra, we agree with the Examiner’s finding that
Ducharme’s utility disk rotation speed data is utility consumption data since
it can be converted into a displayed amount of utility consumed. Ans. 6.
Second, we find a person of ordinary skill in the art would have known that
Appellants’ utility consumption data would also have been received and
displayed in different representational forms, and therefore required a
conversion between the different forms.
Appellants disclose transmitting utility consumption data over an RF
communication link using an ERT (encoder/receiver/transmitter). Spec.
3:8–11, Fig. 5A. A person of ordinary skill in the art at the time of
Appellants’ invention would have known that the ERT, as its name implies,
would have encoded a representation of the utility consumption data on a
carrier signal of the RF link using a data modulation scheme (e.g., an
amplitude (AM), frequency (FM) or quadrature phase shift keying (QPSK)
modulation scheme). Thus, the form of the utility consumption data
received by the communication circuitry (e.g., a transmitted symbol in the
form of a QPSK modulated carrier signal) would be different from the form
of the utility consumption data displayed by the display (e.g., a raster map
representing a glyph of an Arabic number), and one or more conversions
would be required to convert the representational form of the received data
into the representational form of the displayed data.

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III. Whether Ducharme discloses a utility metering endpoint device
that transmits utility consumption data.

Appellants next argue the Examiner erred in rejecting claim 2 because
Ducharme’s utility consumption measurement device is a power meter that
does not transmit anything. Reply Br. 3 (citing Ducharme, Fig. 1, meter
20/30). Instead, Appellants argue, it is the combination of Ducharme’s
power meter monitor 110 and camera 124 (see Ducharme Fig. 3) that
transmits the utility disk rotation speed data, which is then converted into
utility consumption data by Ducharme’s wall-mounted monitor 200. Id.
Appellants raise this argument for the first time in the Reply, and fail
to explain why “good cause” exists for the Board to consider it. See Reply
Br. 3. Consequently, we find Appellants have waived this argument. See Ex
parte Borden, 93 USPQ2d at 1476 (“When new issues have been raised by
the Appellant but not addressed by the Examiner, the Board, unless good
cause is shown, will not consider those new issues.”).
Moreover, even if not waived, we are not persuaded by Appellants’
argument. First, as noted supra, we agree with the Examiner’s finding that
Ducharme’s transmitted utility disk rotation speed data is a representational
form of utility consumption data. Ans. 6. Second, claim 2 does not recite a
utility consumption measurement device. Instead, in the preamble, it recites
“at least one utility metering device endpoint adapted to transmit utility
consumption data.” Claims App’x (emphasis added). Appellants have not
argued that the preamble “is necessary to give life, meaning, and vitality” to
the claim, such that it “should be construed as if in the balance of the claim.”
Pitney Bowes Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir.
1999) (internal citations omitted). Nor have they explained why a rejection
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of claim 2 requires identifying an endpoint device that transmits utility
consumption data when the claim is directed to “[a]n apparatus for collecting
and displaying consumption data . . . comprising: communication circuitry
configured to receive transmitted utility consumption data.” Claims App’x.
(emphasis added). We find the utility metering device endpoint recited in
the preamble is not necessary to breathe life, meaning and vitality to claim 2.
Therefore, it is not an element of the claim, and need not be identified in the
prior art to reject the claim. See In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir.
1995) (“[T]he PTO establishes that the invention as claimed in the
application is obvious over cited prior art, based on the specific comparison
of that prior art with claim limitations.”) (emphasis added).
Third, even if we considered claim 2 to require identification of the
preamble’s utility metering endpoint device, Appellants have not explained
why the device is limited to Ducharme’s power meter 20/30, and cannot
include the power meter monitor 110, camera 124, and associated circuitry
for transmitting the utility disk rotation speed data. Appellants do not direct
us to a definition of a utility metering endpoint device in the Specification,
and we find no such definition. Moreover, the Specification does not
disclose that the utility consumption data is transmitted from a utility meter,
but from “special transmitters called ERTs (encoder/receiver/transmitter)
that are attached to the various utility delivery and/or metering points (such
as meters).” Spec. 3:8–10, Fig. 5A (ERT 130, meter 132) (emphasis added).
Since the utility meter does not transmit the utility consumption data, it
cannot be considered the utility metering endpoint device. Rather, the ERT
or the combination of the utility meter and ERT is the utility metering
endpoint device. In view of the above, we do not find Appellants’
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argument—that Ducharme’s utility consumption measurement device is a
power meter that does not transmit anything—persuasive of error in the
Examiner’s rejection of claim 2. See Reply Br. 3.

DECISION
For the reasons indicated above, we sustain the Examiner’s rejection
of claim 2. Moreover, since Appellants do not separately argue for the
patentability of claims 3–8, App. Br. 10, we sustain the Examiner’s rejection
of these claims as well. 37 C.F.R. § 41.37(c)(1)(vii) (2010).

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).

AFFIRMED

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