Ex Parte Krebs et al

Patent Trial and Appeal Board

Dec 19, 2016

13367236 (P.T.A.B. Dec. 19, 2016)

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.
13/367,236 02/06/2012 Peter Leonard Krebs 25HC-164562 1063
30764 7590 12/21/2016
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
12275 EL CAMINO REAL, SUITE 200
SAN DIEGO, CA 92130
EXAMINER
HANN, JAY B
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
12/21/2016 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):
DOCKETING@ SHEPPARDMULLIN.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER LEONARD KREBS, MADS NAESTHOLT JENSEN,
VARUN SINGH, JACOB MILES, JEREMY GAYED,
and DAVID WIGHTMAN SWARTZ
Appeal 2015-008115
Application 13/367,236
Technology Center 2100
Before ERIC S. FRAHM, LINZY T. McCARTNEY, and
CARL L. SILVERMAN, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-008115
Application 13/367,236
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-13, 15-21, 23-25, 27-33, 35-37, 39-45, and 47-54. Claims 14,
22, 26, 34, 38, and 46 have been canceled.1 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Exemplary Claims
Exemplary claims 1 and 13 under appeal, with emphases added to key
portions of the claims at issue, read as follows:
1. A method for analyzing an architectural structure,
comprising:
receiving a design option to apply to an element of the
architectural structure;
assigning a range of varying values to a design option
parameter associated with the design option, wherein the design
option parameter is configured to control a level of
change effectuated on the architectural structure by the design
option;
for each current varying discrete value in the range of
varying values:
1 We note that claims 16—18 improperly depend from canceled claim 14.
Should there be further prosecution, we leave it to the Examiner and
Appellants to cure this deficiency. For the purposes of our analysis, we treat
claims 16—18 as if they depend from claim 13. Although we agree with the
Examiner’s findings with regard to Kennedy, namely that the disclosures at
paragraphs 70, 71, 76, and 77 in Kennedy, in combination with Fitch and
Energy Engineering, teach or suggest the various features of claims 16—18
(see Final Act. 28—30), Appellants only present arguments to claims 13, 25,
and 37 (see App. Br. 24—26), stating that claims 16—18 depend from claim
13 (App. Br. 26).
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Application 13/367,236
applying the design option to the element of the
architectural structure while the design option parameter is
assigned the current varying discrete value, and
determining for the current varying discrete value , based
on the current varying discrete value, a performance metric of
the architectural structure as a result of applying the design
option to the element of the architectural structure while the
design option parameter is assigned the current varying discrete
value; and
generating a chart that plots a graphical representation of
a set of performance metrics of the architectural structure as
determined for the range of varying values, the set of
performance metrics including the performance metrics
determined for the set of current varying discrete values, the
chart including a plurality of response curves that each
correspond to a different building performance metric in the set
of performance metrics, the plurality of response
curves displaying tradeoffs between the two or more
performance metrics for the range of varying values.
13 .A method for analyzing an architectural structure,
comprising:
receiving a set of design options to be applied to the
architectural structure, wherein the set of design options
includes a design option associated with a design option
parameter in a set of design option parameters, and wherein the
design option parameter is configured to control a level of
change effectuated on the architectural structure by the design
option;
assigning a set of values to the set of design option
parameters, wherein at least one member of the set of values is
a range of varying values, and wherein the design
option parameter is assigned the range of varying values;
determining a set of assignment combinations for the set
of design option parameters based on the design option
parameter being assigned the range of varying values;
determining a set of analysis iterations based on the set
of assignment combinations, wherein each analysis iteration is
associated with an assignment combination from the set
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of assignment combinations, and wherein each analysis
iteration:
applies the set of design options to the architectural
structure in accordance with the set of design option parameters
as modified by an assignment combination associated with
the analysis iteration, and
determines a set of performance metrics of the
architectural structure that result from applying the set of design
options to the architectural structure;
performing the set of analysis iterations on the
architectural structure, thereby providing a set of results
corresponding to the set of analysis iterations; and
generating a chart that plots a graphical representation of
the set of performance metrics based on at least some of the set
of results, the graphical representation including information
regarding the set of analysis iterations associated with the at
least some of the set of results, the chart including a plurality of
response curves that each correspond to a different
building performance metric in the set of performance metrics,
and the plurality of response curves displaying tradeoffs
between the two or more performance metrics for the range of
varying values.
The Examiner’s Rejections
(1) Claims 1—12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Fitch (US 2011/0246381 Al; Oct. 6,
2011), Kennedy (US 2004/0239494 Al; Dec. 2, 2004), and Foresight
Engineering, P.C., Energy Engineering, Wayback Machine Internet
Archive, pp. 1-5 (Nov. 24, 2009),
https://web.archive.org/web/20091124220519/http://fepc.us/gpage8.html
(last accessed Dec. 8, 2016) (hereinafter, “Energy Engineering”). Final Act.
5-23.
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Application 13/367,236
(2) Claims 13, 15-19, 23-25, 27-31, 35-37, 39—43, 47, and 48 are
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Kennedy, Fitch, and Energy Engineering. Final Act. 23—48.
(3) Claims 20, 21, 32, 33, 44, and 45 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Kennedy, Fitch,
Energy Engineering, and Dawson (US 2007/0078960 Al; April 5, 2007).2
Final Act. 48—52.
(4) Claims 49-54 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kennedy, Fitch, Energy Engineering,
and Ankory (US 8,005,656 Bl; Aug. 23, 2011). Final Act. 52—55.
Principal Issues on Appeal
Based on Appellants’ arguments in the Appeal Brief (App. Br. 19-27)
and the Reply Brief (Reply Br. 2—7),3 the following two principal issues are
presented on appeal:
2 We consider dependent claims 20, 21, 32, 33, 44, and 45 to stand rejected
over the combination of Kennedy, Fitch, Energy Engineering, and Dawson.
Although the Examiner mistakenly leaves Energy Engineering out of the list
of applied references in the statement/heading of the rejection (Final Act.
48), this is harmless error as Energy Engineering is clearly relied upon in the
Final Office Action for the feature of using plural charts/curves that is found
in both independent claims 1, 13, 25, and 37 (and as a result, is also found in
claims 20, 21, 32, 33, 44, and 45 which depend from respective ones of
claims 13, 25, and 37). Additionally, Appellants treat the rejection as
including Energy Engineering in the arguments as to claims 20, 21, 32, 33,
44, and 45 (see App. Br. 26 (referring to arguments present as to claims 13,
25, and 37 found at pages 24—26 of the Appeal Brief)).
3 Appellants primarily present arguments as to independent method claim 1
(App. Br. 20-24; Reply Br. 2—7) and independent method claim 13 (App.
Br. 24—26; Reply Br. 2—7), and assert that the remaining claims contain
similar features as respective claims 1 and 13 and are, therefore, patentable
for the same reasons (App. Br. 24 and 26). Independent claims 1, 5, and 9
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(1) Did the Examiner err in rejecting claims 1—12 as being
unpatentable over the combination of Fitch, Kennedy, and Energy
Engineering because the combination fails to teach or suggest a method for
analyzing an architectural structure including the design option, design
option parameter, and plural curve limitations, as recited in representative
independent claim 1 ?
(2) Did the Examiner err in rejecting claims 13, 15—21, 23—25, 27—33,
35—37, 39-45, 47, and 48 as being unpatentable over the combination of
Kennedy, Fitch, Energy Engineering, and Dawson because the combination
fails to teach or suggest the method for analyzing an architectural structure
including the design option, design option parameter, plural curve, and
iterative analysis limitations, as recited in representative independent claim
13?4
each recite features relating to analyzing an architectural structure based on a
design option having a design option parameter that can be assigned
different values. Independent claims 13, 25, and 37 each recite features
relating to the method of claim 1 with the added feature of performing
iterations on assigned combinations of the design option parameters.
Appellants argue claims 20, 21, 32, 33, 44, and 45 for the same reasons
presented as to claims 13, 25, and 37 (App. Br. 26).
In view of the foregoing, we select claim 1 as representative of the
group of claims 1—12 rejected for obviousness over Fitch, Kennedy, and
Energy Engineering; and we select claim 13 as representative of the group of
claims 13, 15—19, 23—25, 27—31, 35—37, 39-43, and 47—54, rejected for
obviousness over Fitch, Kennedy, and Dawson, pursuant to our authority
under 37 C.F.R. § 41.37(c)(l)(iv). Because Appellants present no arguments
as to the remaining obviousness rejection of claims 49—54 rejected for
obviousness over Fitch, Kennedy, Energy Engineering, and Ankory, we will
summarily sustain this rejection.
4 Because Appellants argue claims 20, 21, 32, 33, 44, and 45 for the same
reasons presented as to claims 13, 25, and 37 (App. Br. 26), we will decide
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ANALYSIS
We have reviewed the Examiner’s rejections (Final Act. 5—55) in light
of Appellants’ arguments in the Appeal Brief (App. Br. 19-27) and the
Reply Brief (Reply Br. 2—7) that the Examiner has erred, as well as the
Examiner response to Appellants’ arguments in the Answer (Ans. 2—7). We
disagree with Appellants’ arguments.
Claims 1—12
With regard to representative independent claim 1, we adopt as our
own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken (Final Act. 5—8), and (2) the reasons set forth
by the Examiner in the Examiner’s Answer (Ans. 2—7) in response to
Appellants’ Appeal Brief. We concur with the conclusions reached by the
Examiner, and we provide the following for emphasis.
We agree with the Examiner (Final Act. 5—8; Ans. 2—7) that the
combination of Fitch, Kennedy, and Energy Engineering teaches or suggests
a method for analyzing an architectural structure including the design option,
design option parameter, and plural curve limitations, as recited in
representative independent claim 1. Appellants have not shown otherwise.
Our agreement with the Examiner’s conclusion of obviousness as to
claim 1 is based on our agreement with the Examiner (see Ans. 3) that
paragraph 88 of Appellants’ Specification defines “design options” in a
manner that supports the broadest reasonable interpretation of the claim term
“design option” as a design choice that can “improve aspects of
the outcome of claims 20, 21, 32, 33, 44, and 45 based on the outcome for
claims 13, 25, and 37 from which these claims depend. And, since claim 13
is representative of claims 25 and 37, the outcome for the rejection of claims
20, 21, 32, 33, 44, and 45 will be decided by the outcome for claim 13.
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[architectural structure] construction or performance” (Spec. 1 88). Notably,
Appellants do not provide a response to the Examiner’s interpretation of
design options based on Appellants’ Specification (see generally Reply Br.
2—7). In light of the Examiner’s reliance on the Specification to support the
interpretation of “design options,” and Appellants’ failure to refute this
interpretation with evidence or argument, we are unpersuaded by
Appellants’ argument in the Reply Brief (Reply Br. 2) that “the Examiner
cannot rely on his own rejection/reasoning to support his position.”
Paragraph 88 of Appellants’ Specification describing and defining the
term “design option” is reprinted below for clarification:
Using the geometric data and performance
criteria/operational properties of the architectural structure
along with location-related data, the embodiment may suggest
and apply design options to the architectural design that
improve aspects of its construction or performance. For
example, with the application of select design options, the
embodiment may analyze and determine that the selected
design options would result in certain features for the
architectural structure that lower construction cost, lower
operational cost, lower maintenance cost, increase compliance
or rating with a building standard or certification system (e.g.,
LEED®, CSH, BREEAM), or improve sustainability. Design
options include, but are not limited to, a change to: (i) the
architectural structure; (ii) an equipment choice for the
architectural structure (e.g., water heating, fan /pump/ motor);
(Hi) an energy source choicef e.g., nuclear, coal, gas, off-site
renewable, on-site renewable, wind turbines, fuel cells, solar,
and hydropower) for the architectural structure; (iv) a water
source choice (e.g., rainwater, water main) for the
architectural structure; (v) a heating choice for the
architectural structure; (vi) a cooling choice for the
architectural structure; and (vii) a construction choice for the
architectural structure (e.g., construction type, wall type,
fenestration type, roof type, insulation).
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Spec. 1 88 (italic and underlined emphases added). In this light, we agree
with the Examiner (Final Act. 5—6) that the design options and design option
parameters in Fitch and Kennedy are encompassed by the recitation in claim
1 of design options and design option parameters.
In addition, we agree with the Examiner (Ans. 2—3 and 7—8) that claim
1 only requires two response curves, and therefore the claim term “plurality
of response curves” encompasses Energy Engineering’s disclosure of a
base/reference curve and a design option curve (see p. 4, Drawing labeled
“Additional View Options” found at the end of Section 3).
In view of the foregoing, we sustain the obviousness rejection of
representative claim 1 as well as claims 2—12 grouped therewith as being
obvious over the combination of Kennedy, Fitch, and Energy Engineering.
Claims 13, 15-21, 23-25, 27-33, 39-45, 47, and 48
With regard to representative independent claim 13, we adopt as our
own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken (Final Act. 23—27), and (2) the reasons set
forth by the Examiner in the Examiner’s Answer (Ans. 2—7) in response to
Appellants’ Appeal Brief. We concur with the conclusions reached by the
Examiner, and we provide the following for emphasis.
We agree with the Examiner (Final Act. 23—27; Ans. 2—7) that the
combination of Kennedy, Fitch, Energy Engineering, and Dawson teaches or
suggests the method for analyzing an architectural structure including the
design option, design option parameter, plural curve, and iterative analysis
limitations, as recited in representative independent claim 13. Appellants
have not shown otherwise. Appellants’ arguments (App. Br. 24—26; Reply
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Br. 2—7) as to claim 13 are unpersuasive for similar reasons as provided
form claim 1 above, and for the following three additional reasons.
First, we agree with the Examiner (Final Act. 5—6) that Fitch discloses
iteratively adjusting and modeling using design parameters, Kennedy
discloses optimizing building/construction parameters, and it would have
been obvious to combine Fitch and Kennedy to automate and optimize at an
early stage (when design changes could significantly impact energy
efficiency) when considering a range of possible parameter values in a
system modeling energy consumption of a building (Final Act. 6).
Second, we agree with the Examiner (Final Act. 23—27) that Kennedy
discloses an energy analysis module 116 (Kennedy 22 and 26) for
running simulations based on parameters input by a user, and that the
parameters can be held constant or restricted to ranges of values (Kennedy
Tflf 67—70 and 78). Asa result, we agree with the Examiner that (i) because
“[e]ach simulation is one iteration^ t]hus, Kennedy paragraph 70 line 9
‘simulation runs’ are a set of analysis iterations” (Final Act. 25); and (ii) “[a]
plurality of simulation runs results are a set of results corresponding to the
set of analysis iterations” as set forth in claim 13 (Final Act. 26).
Third, we agree with the Examiner (Ans. 7) that claim 13 does not
require the iterations be done automatically as argued by Appellants.
In view of the foregoing, we sustain the obviousness rejection of
representative claim 13 as well as claims 15—21, 23—25, 27—33, 39-45, 47,
and 48 grouped therewith as being obvious over the combination of
Kennedy, Fitch, Energy Engineering, and Dawson.
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Claims 49—54
Based on Appellants’ failure to address the Examiner’s prima facie
case of obviousness, Appellants have failed to show that the Examiner erred
in determining that the remaining combination additionally applying Ankory
teaches or suggests the method, computer program product, and computer
system recited in claims 49—54. Accordingly, we sustain the Examiner’s
obviousness rejection of these claims summarily. See 37 C.F.R.
§ 41.37(c)(l)(iv) (requiring a statement in the briefs as to each ground of
rejection presented by Appellant for review and stating that arguments not
presented in the briefs will be refused consideration).
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1—13, 15—21, 23—25,
27—33, 35—37, 39-45 as being unpatentable under 35 U.S.C. § 103(a).
(2) Appellants have not shown that the Examiner erred in rejecting
claims 49-54 as being unpatentable under 35 U.S.C. § 103(a).
DECISION5
The Examiner’s rejections of claims 1—13, 15—21, 23—25, 27—33, 35—
37, 39-45, and 47—54 are affirmed.
5 We do not look beyond the issue raised in the Appeal that the Examiner
improperly rejected claims 1—13, 15—21, 23—25, 27—33, 35—37, 39-45, and
47—54 as being unpatentable for obviousness over the applied references.
However, upon further prosecution, the Examiner may want to consider
whether, the claims on appeal fall within a statutory category, and/or the
claims on appeal are drawn to a patent-ineligible abstract idea, in view of the
Supreme Court’s decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134
S.Ct. 2347 (2014).
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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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