Ex Parte Krebs et alDownload PDFPatent Trial and Appeal BoardDec 19, 201613367236 (P.T.A.B. Dec. 19, 2016) Copy Citation 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). 2 Appeal 2015-008115 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 3 Appeal 2015-008115 Application 13/367,236 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. 4 Appeal 2015-008115 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 5 Appeal 2015-008115 Application 13/367,236 (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 6 Appeal 2015-008115 Application 13/367,236 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. 7 Appeal 2015-008115 Application 13/367,236 [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). 8 Appeal 2015-008115 Application 13/367,236 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 9 Appeal 2015-008115 Application 13/367,236 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. 10 Appeal 2015-008115 Application 13/367,236 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). 11 Appeal 2015-008115 Application 13/367,236 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 12 Copy with citationCopy as parenthetical citation