Ex Parte Boss et al

Patent Trial and Appeal BoardFeb 23, 2016

12347009 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/347,009 12/31/2008 79980 7590 02/25/2016 Keohane & D'Alessandro 1881 Western Avenue Suite 180 Albany, NY 12203 FIRST NAMED INVENTOR Gregory J. Boss 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. END920070430US 1 1352 EXAMINER KARIM, ZIAUL ART UNIT PAPER NUMBER 2127 NOTIFICATION DATE DELIVERY MODE 02/25/2016 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): drubbone@kdiplaw.com Docket@Kdiplaw.com lcronk@kdiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY J. BOSS, JAMES R. DORAN, RICK A. HAMIL TON II, and ANNE R. SAND Appeal2014-000634 Application 12/347,009 Technology Center 2100 Before CARL W. WHITEHEAD JR., HUNG H. BUI, and JOHN F. HORVATH, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants are appealing the final rejection of claims 1-3, 5-10, and 12-20 under 35 U.S.C. Â§ 134(a). Appeal Brief 1. We have jurisdiction under 35 U.S.C. Â§ 6(b) (2012). We affirm. Introduction The invention is directed to an energy management and quality of service method providing users the capability to select how energy is throttled in shortage conditions. Abstract. Appeal2014-000634 Application 12/347,009 Representative Claim (disputed limitations emphasized) 1. A computer-implemented method for managing energy consumption based on a quality of service (QoS) agreement, compnsmg: determining an energy throttle plan based on the QoS agreement; detecting an energy shortage condition; throttling energy usage of a set of non-critical devices according to the energy throttling plan; providing a predetermined minimum level of energy to at least meet the energy needs to maintain a set of critical devices of a user based on the QoS agreement in response to the throttling, wherein the predetermined minimum level of energy is allocated to the user before another user conserving less energy; and monitoring the energy usage to ensure compliance with the energy throttling plan. Re} ection on Appeal Claims 1-3, 5-10, and 12-20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Botes (US Patent Number 7,742,830 Bl; issued June 22, 2010) and Greene (US Patent Application Publication Number 2009/0187782 Al; published July 23, 2009). Final Rejection 5-8. ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed March 21, 2013), the Answer (mailed July 16, 2013), and the Final Rejection (mailed November 8, 2012) for the respective details. We have considered in this decision only those arguments Appellants actually raised in the Briefs. 2 Appeal2014-000634 Application 12/347,009 We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. We disagree with Appellants' conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief, and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. Appellants contend that "the combination of Botes and Greene fails to specifically teach or suggest allocation of energy to the user before another user conserving less energy" as required in claim 1. Appeal Brief 8. The Examiner finds: Botes teaches an energy throttle plan, energy shortage detection, and energy consumption and limits on data centers energy usage based on emissions credits (see Botes, col. 4, lines 30-45). One of ordinary skill in the art would instantly recognize that the monitoring and control of emissions credits and the monitoring and control of energy usage are analogous and directly related. Final Rejection 6. The Examiner finds Greene discloses that "within processing power allocation schemes for data centers for the purpose of minimizing power consumption there is advantage to providing 'incentives to customers with particular characteristics of power consumption."' 1 Final Rejection 6 1 "This ability to track and manage power consumption provides opportunities to allocate processing resources to stay within power consumption targets, figure out the true cost of providing a customer a particular service level, reward or provide incentives to customers with particular characteristics of power consumption, and to adjust task allocation Footnote continued on the next page. 3 Appeal2014-000634 Application 12/347,009 (quoting Greene paragraph 37). The Examiner further finds Greene discloses such incentives may be provided "during a demand response condition when the demand on the power grid hits a predetermined level (e.g., and overload)." Answer 8; see Greene paragraph 58. Based on these factual findings, the Examiner concludes: [IJt would be obvious to one of ordinary skill in the mt that the user of Botes who uses less energy would be rewarded i~, ... for 1 imiting power consumption in the occurrence of a power ovedoad by being provided the predetermined rninimum level of energy according to that user's quality of service agreement before another user conserving less energy~ as such allocation would predictably result in the desired behavior of users agreeing to consurne less po\ver during times of stress on the power resource~ rewarding those consumers who pre-negotiate such energy throttling plans. Answer 9. \Ne agree with the Examiner's conclusion, and are not persuaded by Appellants' argument that the Examiner erred. Appellants further argue: Botes teaches, " ... if a company does not use its allocation, it may sell the unused credits to, for example, a company that has exceeded its allocation, thereby allowing a company to effectively generate more than its allocated emissions," and " ... the number of kilowatts (KW) of green power purchased may not be used in calculation when determining a company's total emissions." Appeal Brief 9-10 (quoting Botes column 4, lines 50-53, column 5, lines 17-19). According to Appellants, the combination of Botes and Greene is defective because "Botes teaches away from using the emission to account for external factors." Greene paragraph 37. 4 Appeal2014-000634 Application 12/347,009 credit as an incentive to conserving users/ entities, and instead, effectively allows purchasers of credits to consume more energy." Appeal Brief 10. We do not find Appellants' arguments persuasive because Appellants have not indicated where Botes discourages the use of emission credits as incentive to conserve energy. 2 Therefore, we sustain the Examiner's obviousness rejection of claim 1. We also sustain the Examiner's obviousness rejection of dependent claims 2-7 since they were not separately argued. See Appeal Brief 10-11. Appellants argue that the Botes and Greene combination is defective and fails to establish obviousness in regard to claims 8, 15, and 20. Appeal Brief 11-13. Appellants argue that with "Appellants' claimed invention, conserving users meeting the obligation under the throttling plan are given preference and, as such, will be allocated energy to maintain the predetermined minimum energy supply before non-conserving users" and that "[ t ]hese limitations are not present in either Botes or Greene." Appeal Brief 11-13. We do not find Appellants' arguments persuasive for claims 8, 15, and 20 for the same reasons we found for claim 1. Therefore, we sustain the Examiner's obviousness rejection of claims 8, 15 and 20. We also 2 "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 Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (citations and internal quotation marks omitted). See also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (noting that merely disclosing more than one alternative does not teach away from any of these alternatives if the disclosure does not criticize, discredit, or otherwise discourage the alternatives). 5 Appeal2014-000634 Application 12/347,009 sustain the Examiner's obviousness rejection dependent claims 9-14 and 16-19 since they were not separately argued. See Appeal Brief 13. DECISION The Examiner's obviousness rejection of claims 1-3, 5-10, and 12-20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 6