Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The Amendment filed 2/4/25 has been entered.
Response to Arguments
Applicant’s arguments with respect to the amended claims filed 2/4/25 have been considered as follows.
Double Patenting Rejections of the claims:
The rejections are maintained since no terminal disclaimer is filed.
35 USC 102/103 Rejections of the claims:
Applicant argues the rejections should be withdrawn because Berman (US 20130057937) does not teach “using a three-dimensional building model representative of the building to calculate solar irradiance through the at least one tintable window into a space of the building based, at least in part, on the sensor data and a predicted clear sky irradiance”.
Examiner respectfully disagrees and points out, Applicant appears to argue Berman does not teach the solar irradiance is directly from the sun to the window (i.e., the sun irradiance is reflected into the window in Berman’s teaching according to Applicant), which is not persuasive since the limitation(s) “directly” or “non-reflecting irradiance” or the like is not part of the claim language. Applicant further argues Berman does not teaches the relation between listed different information, however it is not clear which information related to the claimed invention Applicant refers to. Nevertheless, e.g., at least the shadow is related to the 3-D models in the listing in Berman’s abstract.
To the extent it may apply, Applicant appears to argue Berman’s teaching in in the abstract only therefore is excluded as prior art. Examiner respectfully disagrees and points out an abstract is part of the disclosure and is considered as prior art when applicable. Further Berman does not only disclose in the abstract the claimed invention related to the three-dimensional building model, but also has further description on [83] of the specification, “[0083] In various embodiments, ASC 100 may utilize one or more data tables, for example a window table, an elevation table, a floor table, a building table, a shadow table, a reflective surface table, and the like. A window table may comprise information associated with one or more windows of a building (e.g., location information, index information, and the like). An elevation table may comprise information associated with one or more elevations of a building (e.g., location information, index information, and the like). A floor table may comprise information associated with floor of a building (e.g., floor number, height from ground, and the like). A building table may comprise information about a building, for example, orientation (e.g., compass direction), 3-D coordinate information, and the like. A shadow table may comprise information associated with one or more objects which may at least partially block sunlight from striking a building, for example, the height of a mountain, the dimensions of an adjacent building, and the like. A reflective surfaces table may comprise information associated with one or more reflective surfaces, for example, 3-D coordinate information, and the like. In this manner, ASC 100 may calculate desired information, for example, when sunlight may be reflected from one or more reflective surfaces onto one or more locations on a building, when a portion of a building may be in a shadow cast by an adjacent building, and the like.”
Therefore Examiner maintains the rejections.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claim(s) 36,41-42,45,48-49,52,55 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 38 of U.S. Patent No. 11719990. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the conflicting claim(s) of the instant application is disclosed in the conflicting claim(s) of the patent.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 36-55 is/are rejected under 35 U.S.C. 102(a)(1) or (2) as being anticipated by Berman (US 20130057937, of record).
Regarding claim 36, Berman teaches (Title, “AUTOMATED SHADE CONTROL IN CONNECTION WITH ELECTROCHROMIC GLASS”, Abstract, “...controllers that use algorithms to control...”) A method for controlling at least one tintable window, the method comprising:
receiving sensor data from a plurality of sensors outside a building (e.g., Abstract, “real-time sky conditions, solar radiation on a building”, [54], “...external sensor mounts...”, [106], “...sensors...exterior...”) in which the at least one tintable window is disposed, the sensor data related to irradiance outside the building;
using a three-dimensional building model representative of the building to calculate solar irradiance through the at least one tintable window into a space of the building based, at least in part, on the sensor data and a predicted clear sky irradiance; and
controlling tint of the at least one tintable window based, at least in part, on the calculated solar irradiance through the at least one tintable window (Abstract).
Regarding claim 37, Berman further teaches The method of claim 36, wherein the calculated solar irradiance is based, at least in part, on input from a user (Abstract, “occupant preference information”).
Regarding claim 38, Berman further teaches The method of claim 37, wherein the input from the user includes a lighting condition for a room (“lighting”).
Regarding claim 39, Berman further teaches The method of claim 38, wherein controlling tint generates the lighting condition for the room (“glass having variable characteristics”).
Regarding claim 40, Berman further teaches The method of claim 38, wherein the input from the user is set in an application (“algorithms”, “occupant preference information”).
Regarding claim 41, Berman further teaches The method of claim 36, wherein the calculated solar irradiance is based, at least in part, on geometry of the building (Abstract, “3-D”).
Regarding claim 42, Berman further teaches The method of claim 36, wherein the determining is based, at least in part, on surroundings external to the building (Abstract, “surrounding structures”).
Regarding claim 43, Berman further teaches The method of claim 36, wherein the plurality of sensors comprises photosensors ([106], “ohoto sensors”).
Regarding claim 44, Berman further teaches The method of claim 36, wherein the determining is based, at least in part, on override information (Abstract, “manual overrides”).
Regarding claims 45-55, mutatis mutandis, Berman teaches all the limitations as stated in claims 36-44 rejections above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WEN HUANG whose telephone number is (571)270-0234. The examiner can normally be reached on Monday thru Thursday 9am - 4pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s SPE, Pinping Sun can be reached on (571) 270-1284. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WEN HUANG/Primary Examiner, Art Unit 2872
wen.huang2@uspto.gov
(571)270-0234
