Ex Parte Kwit

Patent Trial and Appeal Board

Nov 6, 2015

11365042 (P.T.A.B. Nov. 6, 2015)

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.
11/365,042 02/28/2006 Lewis M. Kwit 2254
24919 7590 11/06/2015
MCAFEE & TAFT
TENTH FLOOR, TWO LEADERSHIP SQUARE
211 NORTH ROBINSON
OKLAHOMA CITY, OK 73102
EXAMINER
CHEN, GEORGE YUNG CHIEH
ART UNIT PAPER NUMBER
3628
MAIL DATE DELIVERY MODE
11/06/2015 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEWIS M. KWIT
____________

Appeal 2013-001104
Application 11/365,042
Technology Center 3600
____________

Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
AMANDA F. WIEKER, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

The Appellant seeks our review under 35 U.S.C. § 134 of the rejection
of claims 1–19 which are all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM.

Appeal 2013-001104
Application 11/365,042

2

THE INVENTION
The Appellant’s claimed invention is directed to a method of
indicating to utility customers their usage of services by utilizing an index
which corresponds inversely to the price per time period (Spec., para. 1).
Claim 1, reproduced below, is representative of the subject matter on appeal.

1. A method of indicating energy consumption for a length of time
comprising the steps of:
using an electrical meter to measure energy consumption for a
plurality of predetermined time periods, each time period having a
corresponding predetermined price per unit of energy;
using an electrical billing system for setting a number of
predetermined rating points corresponding to each of the time periods,
wherein the value of each rating point is inversely related to the price;
and
using the electrical billing system for determining an overall
rating by calculating an average of the combined rating points for all
time periods.

THE REJECTIONS
The following rejections are before us for review:
1. Claims 1–4, 9–14, and 19 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Martin (US 2002/0116282 A1, pub. Aug. 22, 2002),
McKinley (US 2001/0044743 A1, pub. Nov. 22, 2001), and Heberlein
(Thomas A. Heberlein & G. Keith Warriner, The Influence of Price and
Attitude on Shifting Residential Electricity Consumption from On-to Off
Peak Periods, 4 JOURNAL OF ECONOMIC PSYCHOLOGY 107 (1983))
[hereinafter Heberlein].
2. Claims 5–8 and 15–18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Martin, McKinley, and Braithwait (Steven Braithwait,
Appeal 2013-001104
Application 11/365,042

3

Residential TOU Price Response in the Presence of Interactive
Communication Equipment (2000)) [hereinafter Braithwait].

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence1.

ANALYSIS
The Appellant argues that the rejection of claim 1 is improper because
the cited references fail to individually, or in combination, teach the claim
limitation for the electrical billing system setting a number of
“predetermined rating points corresponding to each of the time periods,
wherein the value of each rating point is inversely related to the price” (App.
Br. 12–14; Reply Br. 2–4). The Appellant also argues that the cited
combination of references would not have been obvious (App. Br. 15–18).
In contrast, the Examiner has determined that the rejection of record
for claim 1 is proper (Final Act. 3–5; Ans. 3–8). We agree with the
Examiner. We agree with and adopt the Examiner’s findings for the
individually argued claim elements from claim 1. Appellant’s arguments
attack the references individually, when the rejections are over a
combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA
1981) (“[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.”). For example, Martin discloses using electricity meters to track

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
Appeal 2013-001104
Application 11/365,042

4

a consumer’s usage during both peak and off-peak hours, and giving each
consumer a numeric score based on their consumption profile taking into
account their period of usages (paras. 72, 80, 106, 107, 115). Heberlein in
Table 2 discloses that the price of electricity may be inversely related to the
hours of peak usage. McKinley shows that a consumer usage profile may
take into account a monthly average and may be applied to electric power
services as well (para. 22). Note that Martin at paras. 106 and 115 also
discloses taking the consumers historical use and consumption into
consideration, which would result in a rating for all time periods. Here, the
argued claim limitations have been shown in the rejection of record to be
present in the cited prior art references. The rejection of record has also
determined that the cited combination of known prior art elements would
have been an obvious modification, so as to have a system that included both
peak and off-peak electricity rates used in the ratings system in determining
scores. Final Act. 5. We agree with this rationale in the rejection of record
and determine that the cited combination would have been an obvious,
predictable combination of familiar elements, where each element would
have performed the same function as it did separately, for the advantage of
having a system that took into account electricity rates of both peak and off-
peak hours and the costs associated with each period in determining an
accurate rating for each user. For these reasons the rejection of claim 1 is
sustained. The Appellant has presented largely the same arguments for
claims 2–4, 9–14, and 19 without providing specific arguments for the
limitations of those claims and the rejection of these claims is sustained for
the same reasons given above.
Appeal 2013-001104
Application 11/365,042

5

The Appellant has also argued that the rejection of claims 5 and 6 is
improper (App. Br. 19–21; Reply Br. 7). We disagree and adopt the findings
and rationale made in the rejection of record (see Final Act. 8–10) for both
claims 5 and 6. Claim 5 is directed in part to “intermediate energy
consumption between the periods of higher and lower energy consumption”
in the ratings as well and the use of these time periods is shown by
Braithwait in section 2.1. With regard to claim 6, the use of any particular
ratings scale or score could readily be determined based on the value of the
final score determined to be used. These requirements of claim 6 would be
met simply by using the intermediate time period energy cost disclosed in
the combination by Braithwait. For these reasons, the rejection of claims 5
and 6 is sustained. The Appellant has not presented separate arguments for
claims 7, 8, and 15–18 and the rejection of these claims is sustained for the
same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting the claims as listed in the Rejections section above.

DECISION
The Examiner’s rejection of claims 1–19 is sustained.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED