Ex Parte Davis

Patent Trials and Appeals BoardJan 28, 2019

15468839 - (D) (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 15/468,839 03/24/2017 133690 7590 01/30/2019 Goodhue, Coleman & Owens, P.C. 12951 University Ave Suite 201 Clive, IA 50325 FIRST NAMED INVENTOR Thomas G. Davis 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. Tom Davis-P0002 9668 EXAMINER DALBO, MICHAEL J ART UNIT PAPER NUMBER 2865 NOTIFICATION DATE DELIVERY MODE 01/30/2019 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): docketing@goodhue.com eofficeaction@appcoll.com USPTO@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS G. DA VIS 1 Appeal2018-009155 Application 15/468,839 Technology Center 2800 Before BEYERL YA. FRANKLIN, CHRISTOPHER C. KENNEDY, and BRIAND. RANGE, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant identifies the real party in interest as Thomas G. Davis. Appeal Brief, 4. Appeal 2018-009155 Application 15/468,839 Appellants request our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision rejecting claims 1-16. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). STATEMENT OF THE CASE Claim 1 is illustrative of Appellant's subject matter on appeal and is set forth below: Claim 1 : A method of collecting and sharing envelope efficiency of a building structure on a comparative basis, the method compnsmg: collecting HVAC equipment state information from HVAC equipment associated with the building structure; collecting information about the building structure including the square footage of conditioned space within the building; associating indoor temperature data and outdoor temperature data with the HV AC equipment state information; determining using a processor, heat loss for the building structure using the indoor temperature data, the outdoor temperature data, and the HV AC equipment state information; determining using the processor, the envelope efficiency for the building structure using the heat loss and the square footage of the conditioned spaced within the building; displaying envelope efficiency for the building structure in comparison to a plurality of other building structures to show the envelope efficiency for the building structure on the comparative basis. 2 Appeal 2018-009155 Application 15/468,839 The Examiner relies on the following prior art references as evidence of unpatentability: Roy Arensmeier et al. hereinafter "Arensmeier" us 2015/0261229 us 2014/0266755 Steinberg et al. US 2010/0070234 hereinafter "Steinberg" Gilbert US 2014/0379298 Zou et al. US 2011/0031322 hereinafter "Zou" Fadell et al. hereinafter "Fadell" Carlin et al. hereinafter "Carlin" Koop Davis us 2013/0204440 us 2013/0275263 US 9,443,043 Bl US 7,072,727 Bl THE REJECTIONS Sept. 17, 2015 Sept. 18, 2014 Mar. 18, 2010 Dec. 25, 2014 Feb. 10,2011 Aug. 8, 2013 Oct. 17, 2013 Sept. 13, 2016 Jul. 4, 2006 1. Claims 1-16 are rejected under 35 U.S.C. Â§101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. (See Final Office Action, 2-9.) 3 Appeal 2018-009155 Application 15/468,839 2. Claims 1, 2, and 10 are rejected under 35 USC Â§103 over Roy in view of Arensmeier (see Brief pages 33-44; Final Office Action, 9--14)). 3. Claims 3 and 4 are rejected under 35 USC Â§103 over Roy in view of Arensmeier (see Brief page 44; Final Office Action, 14). 4. Claims 5 and 6 are rejected under 35 USCÂ§ 103 over Roy in view of Arensmeier and Steinberg (see Brief pages 44-45; Final Office Action 15- 18). 5. Claims 7 and 15 are rejected under 3 5 USC Â§ 103 over Roy in view of Arensmeier and Gilbert. (See Final Office Action, 18-23) 6. Claims 8 and 16 are rejected under 35 USC Â§103 over Roy in view of Arensmeier and Zou. (See Final Office Action, 23-27) 7. Claim 9 is rejected under 35 USC Â§103 over Roy in view of Arensmeier and Fadell (see Brief page 68)). 8. Claim 11 is rejected under 35 USC Â§103 over Roy in view of Arensmeier and Carlin (See Final Office Action, 28)). 9. Claims 12 and 13 are rejected under 35 USCÂ§ 103 over Roy in view of Arensmeier and Koop. (See Final Office Action, 29--30) 4 Appeal 2018-009155 Application 15/468,839 10. Claim 14 is rejected under 35 USCÂ§ 103 under 35 USCÂ§ 103 over Roy in view of Arensmeier and Davis (See Final Office Action, 31 ). ANALYSIS For purposes of this appeal, we address separately argued claims, and the remaining claims stand or fall with the argued claims, consistent with 37 C.F.R. Â§ 4I.37(c)(l)(iv). We thus consider claims 1, 15, and 16. Upon consideration of the evidence and each of the respective positions set forth in the record, we find that with regard to the rejection under 35 U.S.C. Â§101, we agree with the Examiner's conclusion that claims 1-16 are patent ineligible for the reasons discusses hereafter. With regard to the prior art rejections, we agree with the Examiner's stated position in the record and adopt it as our own. Accordingly, we sustain each of the Examiner's rejections on appeal and affirm. Rejection 1 The PTO published revised guidance on the application ofÂ§ 101. See USPTO's January 7, 2019 Memorandum, 2019 Revised Patent Subject Matter Eligibility Guidance ("Memorandum"). Under that guidance, our analysis follows. We first look to whether the claim recites: 5 Appeal 2018-009155 Application 15/468,839 (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human interactions such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP Â§ 2106.05(a}-(c), (e}-(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not "well-understood, routine, conventional" in the field (see MPEP Â§ 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Memorandum. Claim 1 is directed to method steps directed to mental processes (observation, e.g., collecting HVAC equipment state information) and mathematical relationships (e.g., determining heat loss using a processor). As such, claim 1 recites a judicial exception, and we then discern whether claim 1 recites additional elements that integrate the judicial exception into a practical application using one or more of the considerations laid out by the courts. We conclude that the claim does not integrate the judicial exception into a practical application, and within this context, we agree with the Examiner's application of certain case law discussed in the record by the Examiner as applicable herein. See, e.g., Ans. 3-8. Finally, we agree with the Examiner's finding that the claim elements "are well-understood, 6 Appeal 2018-009155 Application 15/468,839 routine, and conventional in the art." Id. at 8; Final Act. 4. Although the Appellant argues, e.g., (1) that "collecting HV AC equipment state information" and "associating indoor temperature data and outdoor temperature data with the HV AC equipment state information" are unconventional steps, App. Br. 20-21, and (2) that "an outside temperature sensor" and "a sensor for determining cycling on and off HV AC equipment" are "unconventional limitations," id. at 26-27, a preponderance of the evidence supports the Examiner's determination that they are not, see Ans. 8 ( citing evidence), 10 ( citing evidence), 14 ( citing evidence), 20 ( citing evidence). As such, we agree with the Examiner's conclusion that claim 1 is patent ineligible. With regard to claim 15, claim 15 is directed to a system that includes a sensor for determining cycling on and off of the HV AC equipment, as well as other elements having similar language as that recited in claim 1. To the extent the claim 15 is similar to claim 1, we make the same determinations as made with claim 1, discussed, supra. With regard to the additional element of use of a sensor recited in claim 15, such an element likewise does not integrate the abstract idea into a practical application, and therefore claim 15 is patent ineligible. With regard to claim 16, claim 16 is a method claim similar to method claim 1 but specifies use of a microphone that collects audio of the HV AC equipment. In a similar manner as discussed with regard to the sensor recited in claim 15, use of a microphone likewise does not integrate the abstract idea into a practical application, and therefore claim 16 is patent ineligible. 7 Appeal 2018-009155 Application 15/468,839 In view of the above, we agree with the Examiner's conclusion that claims 1-16 are patent ineligible under 35 U.S.C. Â§101. Rejections 2-10 We note that Appellants do not separately argue the claims that depend upon claim 1. Claims 2-14 either directly or indirectly depend upon claim 1. These claims thus stand or fall with claim 1. 37 C.F.R. Â§ 4I.37(c)(l)(iv). We are unpersuaded by Appellants' arguments regarding the rejection of claim 1 for the reasons provided by the Examiner in the record, particularly as stated in the Examiner's reply to argument beginning on page 20 of the Answer, which we incorporate as our own. We thus affirm Rejections 2-10 for the reasons provided by the Examiner therein. We note that independent claims 15 and 16 are rejected in Rejections 5 and 6, respectively. Appellants' argument regarding the combination of Roy in view of Arensmeier remain unpersuasive for the same reasons relied upon involving the rejection of claim 1. 2 We thus affirm the rejection of claims 15 and 16. DECISION Each rejection is affirmed. TIME PERIOD 2 The Examiner relies upon Gilbert for teaching the aspect of claim 15 pertaining to use of the sensor. Final Act. 22. The Examiner relies upon Zou for teaching the aspect of claim 16 pertaining to use of a microphone. Final Act. 26. We agree with the Examiner's factual findings and position as stated in the record. 8 Appeal 2018-009155 Application 15/468,839 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). ORDER AFFIRMED 9