Ex Parte Bixby et al

Patent Trial and Appeal Board

Jan 17, 2019

12607959 (P.T.A.B. Jan. 17, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/607,959 10/28/2009
125802 7590 01/22/2019
Kilpatrick Townsend & Stockton LLP
Google LLC - Nest Labs, Inc.
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309
FIRST NAMED INVENTOR
Benjamin Bixby
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.
94021-905255 5558
EXAMINER
CAO, VINCENT M
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
01/22/2019 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):
ipefiling@kilpatricktownsend.com
googlepatentmail@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENJAMIN BIXBY and GREGORY O'KEEFFE
Appeal2018-000024
Application 12/607 ,959
Technology Center 3600
Before ERIC B. CHEN, JOSEPH P. LENTIVECH, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 1-18 and 21-33. Claims 19 and 20
have been canceled. See App. Br. 21 (Claims App.). We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Google Inc. App.
Br. 2.
Appeal2018-000024
Application 12/607,959
STATEMENT OF THE CASE
Appellants 'Invention
Appellants' invention generally relates to "methods, graphical user
interfaces, systems and computer readable media for receiving actual
resource consumption information associated with a consumer, analyzing
that information, and determining an environmental impact of the
consumer's resource consumption." Spec. ,r 2. Claim 1, which is
illustrative, reads as follows:
1. A method comprising:
providing, by a third party computer system, a web-based
interface that comprises a menu that permits a consumer to select
a first utility resource consumption validator from a plurality of
utility resource consumption validators;
receiving, by the third party computer system, customer
registration information from the consumer wherein verification
of the customer registration information by an online account
management system associated with the first utility resource
consumption validator selected via the menu of the web-based
interface enables the consumer to access a utility resource
consumption account specific to the consumer;
transmitting, by the third party computer system, the
customer registration information to the online account
management system, wherein verification of the customer
registration information by the online account management
system enables the third party computer system to access and
retrieve information from the utility resource consumption
account;
accessing, by the third party computer system, the utility
resource consumption account;
retrieving, by the third party computer system, hypertext
markup language (HTML) code from a website generated by the
online account management system;
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parsing, by the third party computer system, the HTML
code to obtain actual utility resource consumption information
from the utility resource consumption account;
analyzing, by the third party computer system, the
retrieved actual utility resource consumption information by the
third party computer system to determine an aspect of the
consumer's resource consumption;
storing, by the third party computer system, the actual
utility resource consumption information and the aspect of the
consumer's resource consumption in a data storage device;
accessing, by the third party computer system, the stored
analysis aspect of the consumer's resource consumption;
determining, by the third party computer system, an
environmental impact of the consumer's resource consumption
based on the analysis aspect of the consumer's resource
consumption;
producing, by the third party computer system,
comparison results that comprise the determined environmental
impact and a potential environmental impact associated with a
second utility resource consumption validator;
providing, by the third party computer system, as part of a
second website, the comparison results to the consumer; and
in association with the comparison results being provided
to the consumer, providing, by the third party computer system,
on the second website for the consumer to activate utility service
with the second utility resource consumption validator and
terminate utility service with the first utility resource
consumption validator.
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Application 12/607,959
References2
The Examiner relies on the following prior art in rejecting the claims:
Sheth et al. US 2002/0194502 Al Dec. 19, 2002
English US 2003/0055723 Al Mar. 20, 2003
Salle et al. US 2003/0078800 Al Apr. 24, 2003
Miyamoto et al. US 2004/00444 7 6 Al Mar. 4, 2004
Budike, Jr. US 6,904,385 Bl June 7, 2005
Zicherman US 2006/0129463 Al June 15, 2006
D 'Angelo et al. US 2009/0070412 Al Mar. 12, 2009
Dikeman US 2009/0192894 Al July 30, 2009
Rejections
Claims 1-11, 14--17, and 32 stand rejected under 35 U.S.C. § I03(a)
as being unpatentable over the combination of Sheth, Budike, Dikeman,
Salle, Miyamoto, Zicherman, and English. Final Act. 3-31.
Claims 12 and 13 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Sheth, Budike, Dikeman, Salle,
Miyamoto, Zicherman, English, and D' Angelo. Final Act. 31-34.
Claims 18, 21-31, and 33 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over the combination of Sheth, Dikeman, Salle,
Miyamoto, Zicherman, and English. Final Act. 34--79.
2 All citations herein to these references are by reference to the first named
inventor only.
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Application 12/607,959
ANALYSIS
Claim 1
Appellants contend the combination of Sheth, Budike, Dikeman,
Salle, Miyamoto, Zicherman, and English fails to teach or suggest
"producing, by the third party computer system, comparison results that
comprise the determined environmental impact and a potential
environmental impact associated with a second utility resource consumption
validator," as recited in claim 1. App. Br. 9-11; Reply Br. 2.
In rejecting claim 1, the Examiner finds Salle teaches or suggests the
disputed limitation. Final Act. 12 ( citing Salle ,r 50). In particular, the
Examiner finds "Salle teaches the concept of analyzing usage information
and comparing the current provider with potential providers in a plurality of
metrics including environmental and cost, and providing a consumer with an
opportunity to switch to the potential provider." Id. Based on these
findings, the Examiner determines:
[I]t would have been obvious to one of ordinary skill in the
art at the time of the invention to have utilized the teachings of
Salle with the combination of Sheth, Budike, and Dikeman. As
shown, Salle teaches the concept of assisting the user to [sic] in
the purchasing the resources. Salle teaches this to include
utilizing collected usage data to determine a cost at a current
provider and a predicted cost at another provider. Salle teaches
providing this service such that the user can accurately determine
which provider would best meet the needs of the user. Thus it
would have been obvious to one of ordinary skill in the art at the
time of the invention to have utilized the teachings of Salle such
that the user is provided with the most amount of information to
determine a provider which suites the needs of the user, thereby
increasing user convenience and satisfaction.
Final Act. 12-13.
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Appellants acknowledge Miyamoto teaches a comparison of CO2
emissions of a reference system with a target system, but argue Miyamoto
fails to teach "that the comparison is based on the determined environmental
impact based on an analysis of the consumer's actual utility resource
consumption information as retrieved from a utility resource consumption
account and the comparison compares a consumer's actual resource
consumption with a first resource consumption validator with a second
resource consumption validator to which the consumer can switch his
service," as required by claim 1. App. Br. 9--10.
Appellants argue although Salle teaches basing a deal on a minimal
environmental impact, Salle does not teach or suggest "any form of
comparison involving environmental impact." App. Br. 10 (citing Salle
,r 50). Appellants argue "[ w ]hen this concept of Salle is combined with
Miyamoto, the combination still does not disclose an environmental impact
comparison being provided to a consumer that is based on the consumer's
actual resource consumption," as required by claim 1. App. Br. 10.
In response, the Examiner finds "Dikeman teaches the concept of
determining the environmental impact based on user usage/ consumption
information" and "Salle further teaches the concept of performing
comparisons of a current and potential providers of the resource including
comparisons based on environmental impact." Ans. 3. Based on these
findings, the Examiner concludes the combination of Dikeman and Salle
teaches or suggests the disputed limitation. Ans. 3--4.
In Reply, Appellants argue the combination of Miyamoto and Salle
fail to teach the disputed limitations because "a combination cannot fairly
be envisioned in which an environmental impact comparison is provided to
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Application 12/607,959
a consumer that is based on the consumer's actual resource consumption"
and "[ n Jone of the comparisons of Salle and Miyamoto are based on a
consumer's actual resource consumption. Reply Br. 2. Appellants further
argue "regardless how such references are combined with the remaining
references, the combination remains deficient in proving obvious an
environmental impact comparison based on a consumer's actual resource
consumption through a first resource validator used in the comparison." Id.
As discussed above, the Examiner relies upon the combination of
Dikeman and Salle for teaching or suggesting the disputed limitation.
Ans. 3--4. Appellants' arguments fail to substantively address the
Examiner's findings regarding the combined teachings of Dikeman and Salle
and, therefore, are unpersuasive of error.
Appellants also contend the combination of Sheth, Budike, Dikeman,
Salle, Miyamoto, Zicherman, and English fails to teach or suggest "in
association with the comparison results being provided to the consumer,
providing, by the third party computer system, on the second website for
the consumer to activate utility service with the second utility resource
consumption validator and terminate utility service with the first utility
resource consumption validator," as recited in claim 1. App. Br. 11-12;
Reply Br. 3. Appellants argue:
While Zicherman is generally directed to the purchasing of a
product, at no point does Zicherman consider an arrangement in
which a consumer, as part of the same website that provided the
environmental impact comparison results, can initiate service
with one utility provider and terminate service with another in
association with comparison results, as is required by the
arrangement of independent claim 1. Rather, Zicherman
provides for price comparison shopping for a product, such as
shown in Zicherman's Figure 1. While Zicherman considers a
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product comparison website, Zicherman does not consider any
form of environmental impact comparison that allows a
consumer to switch between resource consumption validators.
App. Br. 11-12; see also Reply Br. 3. Appellants further argue "[a]t best
[ the combination of Miyamoto and Salle] would allow a user to input data
for visual presentation then an automatic selection would be based on the
input environmental data." Reply Br. 3.
We are not persuaded. Appellants' arguments fail to address the
combined teachings of the references relied upon by the Examiner. The
Examiner finds the combination of Sheth, Budike, Dikeman, Salle, and
Miyamoto teaches or suggests "the concept of displaying the comparison of
a current service provider and a potential provider." Final Act. 14. The
Examiner finds Zicherman "teaches the concept of utilizing a second site for
providing displaying comparison information." Final Act. 14--15 ( citing
Zicherman ,r,r 30, 37). Based on these findings, the Examiner determines:
[I]t would have been obvious to one of ordinary skill in the
art at the time of the invention to have utilized the teachings of
Zicherman with the combination of Sheth, Budike, Dikeman,
Salle, and Miyamoto. As shown, the combination discloses the
concept of providing comparison information for a consumer
based on consumer consumption data. As shown, Zicherman
further teaches that it is old and well known for consumer
comparison to be provided as a new window or as part of the
same site. Thus it would have been obvious to one of ordinary
skill in the art at the time of the invention to have utilized the
display of comparison information by using a second page as
Zicherman teaches that it is old and well known to present
comparison information in a plurality of forms.
Final Act. 15. The Examiner finds English teaches "the concept of enabling
the user to switch from a first provider to a second provider" and, therefore,
that the combination of Sheth, Budike, Dikeman, Salle, Miyamoto,
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Zicherman, and English teaches or suggests the disputed limitation. Final
Act. 16-17; see also Ans. 4--5. Appellants' arguments fail to persuasively
address the combined teachings of the references and, therefore, are
unpersuasive of error.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claim 1. Appellants do not argue claims 1-15, 17, 18 and 21-33
separately with particularity but, instead, rely on the arguments presented
with respect to claim 1. See App. Br. 13. Accordingly, we are not
persuaded the Examiner erred in rejecting claims 1-15, 17, 18 and 21-33 for
the reasons discussed above with respect to claim 1.
Claim 16
Claim 15 depends from claim 1 and recites that the method further
comprises "analyzing, by the third party computer system, the retrieved
actual utility resource consumption information to determine a cost
associated with the utility resource consumed." App. Br. 19 (Claims App.).
Claim 16 depends from claim 15 and recites that the method further
compnses:
comparing, by the third party computer system, the cost
associated with the utility resource consumed with a potential
cost associated with the utility resource consumed when the
utility resource is validated via an alternative utility resource
consumption validator, to produce cost comparison results; and
providing, by the third party computer system, the cost
comparison results to the consumer.
App. Br. 19 (Claims App.). Appellants contend the combination of Sheth,
Budike, Dikeman, Salle, Miyamoto, Zicherman, and English fails to teach or
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suggest the limitations recited in claim 16. App. Br. 13-14; Reply Br. 3--4.
Appellants argue:
At the cited portion of Salle, the concept of a contract deal being
based on a lowest cost option is disclosed. Salle, ,r 50. This
portion of Salle is directed to a controller 52 conducting an
analysis. Id. While the controller selection may be based on a
choice being the lowest cost option, at no point is a comparison
of cost of two resource consumption validators provided to a
consumer based on the consumer's actual consumption with the
first resource consumption validator. Rather, Salle's lowest
based selection appears to be made internally by a sequence of
instructions being executed by a processor (controller) without
any cost comparison provided to a consumer.
When combined with the most pertinent other reference,
Miyamoto, Salle is still deficient. Miyamoto performs a
comparison based on a user's entered environmental parameters.
Salle discloses that cost may be used to make a determination as
to which deal to select. When combined, these references still
fail to define an arrangement where a consumer's cost based on
actual consumption with a first resource consumption validator
is presented in comparison with a potential cost from a second
resource consumption validator.
App. Br. 14; see also Reply Br. 3--4.
We are not persuaded. Appellants' arguments fail to address the
combined teachings of the references relied upon by the Examiner in
rejecting claim 16. In particular, the Examiner finds:
[T]he combination of Dikeman, Salle, and Miyamoto
teaches the concept of utilizing collected information (Dikeman)
to perform comparisons (Salle) including providing the
comparisons side by side (Miyamoto). As shown Salle teaches
the concept of the comparisons to be based on a plurality of
factors including comparing both cost and environmental factors.
As discussed above, Miyamoto teaches the concept of providing
comparison information side by side such that it is easily viewed
and referenced. Thus, the combination of Dikeman and Salle
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teaches the information being prepared, and Miyamoto further
teaches the optimal way of presenting the comparison
information. Therefore, the Examiner asserts the combination of
Dikeman, Salle, and Miyamoto teaches the concept of
performing and providing a cost comparison.
Ans. 5. Appellants' arguments fail to substantively address the combined
teachings of Dikeman, Salle, and Miyamoto and, therefore, are unpersuasive
of error.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 16.
DECISION
We affirm the Examiner's rejection of claims 1-18 and 21-33 under
35 U.S.C. § 103(a).
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
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