DETAILED ACTION
Status of Claims
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is a FINAL office action in response to the Applicant’s response filed 17 August 2025
Claims 1-18 are currently pending and have been examined.
Response to Arguments
Applicant's arguments filed 17 August 2025 with regards to the double patenting rejection have been fully considered but they are not persuasive.
With respect to the claims, the Applicant argues on page 7 of their response, “In rejecting the claims under double patenting, examiner relies on a secondary reference — Tran — to teach elements, this is improper as the measure of a double patenting rejection is comparison of the claims of the pending case to the claims of the granted case. As such, the double patenting rejection should be withdrawn. In the alternative, applicant requests the double patenting rejection and the possible entry of a terminal disclaimer be deferred until allowability is confirmed.” The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements of determining whether a claim is should be rejected under Double Patenting. Notably, the Applicant’s argument states that, “examiner relies on a secondary reference — Tran — to teach elements, this is improper as the measure of a double patenting rejection is comparison of the claims of the pending case to the claims of the granted case. As such, the double patenting rejection should be withdrawn,” which appears to state that the only type of Double Patenting Rejection is statutory and non-statutory obvious type double patenting, with no other references showing obviousness; however this is not in accordance with the law and the MPEP. Specifically, the Examiner notes MPEP 804(II)(B)(3) states, “A nonstatutory double patenting rejection, if not based on an anticipation rationale or an "unjustified timewise extension" rationale, is "analogous to [a failure to meet] the nonobviousness requirement of 35 U.S.C. 103 " except that the patent disclosure principally underlying the double patenting rejection is not considered prior art. In re Braithwaite, 379 F.2d 594, 154 USPQ 29 (CCPA 1967). Even though the specification of the applied patent or copending application is not prior art, it may still be used to interpret the applied claims. See paragraph II.B.1, above. The analysis employed with regard to nonstatutory double patenting is "similar to, but not necessarily the same as that undertaken under 35 USC § 103." In re Braat, 937 F.2d 589, 592-93, 19 USPQ2d 1289, 1292 (Fed. Cir. 1991) (citing In re Longi, 759 F.2d 887, 892 n.4, 225 USPQ 645, 648 n.4 (Fed. Cir. 1985)); see also Geneva Pharmaceuticals, 349 F.3d at 1378 n.1, 68 USPQ2d at 1869 n.1 (Fed. Cir. 2003); In re Basell Poliolefine, 547 F.3d 1371, 1379, 89 USPQ2d 1030, 1036 (Fed. Cir. 2008).” The MPEP continues, “In view of the similarities, the factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966) that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 should be considered when making a nonstatutory double patenting analysis based on "obviousness." See MPEP § 2141 for guidelines for determining obviousness. These factual inquiries are summarized as follows: (A) Determine the scope and content of a patent claim relative to a claim in the application at issue; (B) Determine the differences between the scope and content of the patent claim as determined in (A) and the claim in the application at issue; (C) Determine the level of ordinary skill in the pertinent art; and (D) Evaluate any objective indicia of nonobviousness.” The MPEP continues, “Any nonstatutory double patenting rejection made under the obviousness analysis should make clear: (A) The differences between the inventions defined by the conflicting claims — a claim in the patent compared to a claim in the application; and (B) The reasons why a person of ordinary skill in the art would conclude that the invention defined in the claim at issue would have been an obvious variation of the invention defined in a claim in the patent.” Finally, the MPEP continues, “Any secondary reference used to support an obviousness analysis for a nonstatutory double patenting rejection must be prior art under 35 U.S.C. 102 or pre-AIA 35 U.S.C. 102. See MPEP § 2120 et seq. for more information on determining if a reference is prior art and MPEP § 2141, subsection II.A, for determining the scope and content of the prior art.” (Emphasis added). The Examiner additionally notes that the MPEP additionally provides form paragraph ¶8.36 which is to be used in the event that there is Non-Statutory Obvious Type Double Patenting – With a Secondary Reference. As shown and emphasized here, the MPEP has explicitly shown that Non-Statutory Obvious Type Double Patenting, With a Secondary Reference is a valid and proper means to reject claims for failing Double Patenting. As such, the Applicant’s argument to the contrary is found to not be in accordance with the laws and regulations set forth and described in the MPEP and thus the argument if found not persuasive. Therefore, the Examiner maintains that this rejection is proper.
Applicant's arguments filed 17 August 2025 with respect to the 112a rejection of claim 1 have been fully considered but they are not persuasive.
With respect to the claims, the Applicant argues on pages 7 and 8 of their response, “Examiner asserts that support is lacking for the following limitation: wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment However, examiner points to paragraphs 76 and 151 as allegedly filing to disclose such features. But, examiner does not address the detailed explanation in Paragraphs 93-94 which are copied below along with the paragraphs that follow Paragraph 94 which include specific additional examples. Examiner has also not addressed Paragraphs 31 or 33.” The Applicant continues on pages 8 and 9 of their response, “In addition to these paragraphs, specific detailed examples of device behaviour are described in Paragraphs 95-103 with Paragraph 103 specifically explaining: “While a refrigerator used in the example may be limited to it’s compressor, its defrost cycle and perhaps an icemaker, fan, and lights, an HVAC unit or other more complex machinery may have many more variables and many more patterns to monitor that can be saved into the database such that table of use patterns and deviations can be signature.” [00103] Further [00144] describes: Smart meters. Use of power “signatures” (analyzed power wave forms) to identify devices and capture data about the specific equipment in use to create a map of the specific equipment. APIs enable data integration with the system.” The Applicant continues on page 9 of their response, “Furthermore, Claim 4 as originally filed in 17/018,828 stated: 4. The method according to Claim 1, wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for the one of the plurality of pieces of equipment or combinations thereof, and wherein a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.” The Applicant continues in paragraph 10 of their response, “Furthermore, FIGS 6-16 and the corresponding description thereof beginning at [00121] provide additional context into signatures in terms of how they are identified, monitored, tracked and used in the overall context of the system. Examiner’s 35 USC 112(a) rejection is therefore insufficient as the specification goes into great detail concerning the signature, what it is and how it is used. The referenced text is found in the parent application to which the instant case claims priority. The specification therefore provides adequate written description both in the form of text and drawings. It is further noted that Examiner considers the parent case to disclose the claims in a double patenting using logic that it is obvious “by removing the additional limitations” and that “omission of an element and its function is an obvious expedient”. Examiner cannot maintain that there is a double patenting issue with the parent case while also arguing that the parent case does not disclose the limitations of the claim in question.” The Examiner respectfully disagrees with the Applicant’s interpretation of the grounds of the previous rejection, and the bounds of the original disclosure. With regards to the current rejection, it is noted that claim 1 states, “wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment.” With regards to this, it is noted that none of the Applicant’s cited paragraphs disclose deriving an expected power signature for equipment based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. With regards to paragraph 93, the Applicant’s specification states, “When monitoring energy usage, the system does not simply look at energy usage as a whole being higher or lower. A specific signature or energy usage profile may be examined and used as a comparison in order to both determine a potential problem as well as narrow down the potential causes for such an issue. This method of fingerprinting particular equipment or events serves as a signature for identification. Take for example a compressor in a commercial refrigerator. When such a unit is first purchased it should work in a consistent fashion with other similar units. It is expected that units of the same model from the same manufacturer will perform with very similar is not almost identical profiles. Further, units of the same size and power from different manufacturers will also be expected to perform similarly. When performing upgrades and enhancements, equipment is typically selected with a known power signature or profile. The system includes a database of known behavior (operation or power signature) with an expected profile in a variety of deployments. Further, as the equipment ages, a deterioration of performance is expected and this too is factored into the expected behavior in the database.” (Emphasis added). Additionally, paragraph 94 continues, “Unlike other systems that may measure overall energy usage or energy usage over some interval, the disclosed invention measures not only how much energy is used but also how it is used and the pattern or signature of use. This is determined through the knowledge of how a given piece of equipment is expected to be used in the context of where it is deployed and under normal circumstances. A signature pattern of energy use manifests itself allows the detection of anomalies and the accurate prediction of usage by using pattern matching techniques and comparisons with baseline signatures generated from the equipment.” (Emphasis added). As shown and emphasized here, the Applicant’s original written description has does not disclose any feature or step of deriving an expected power signature for equipment based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. Similarly, paragraph 103 states, “In addition to simple ranges of values, it may be that once a week the refrigerator is loaded and the personnel leave the door open while this is done. This may lead to one or more long cooling cycles during this period. Rather than immediately triggering an alert, the system can analyze the changes over time to see the values settle into the expected pattern to filter out the anomalies such as loading or unloading. In fact, the pattern may be extended to show additional parameters such as the triggering of the defrost cycle itself. In such a case, we would see the normal 10-on, 50-off pattern of the compressor but we would also see an expected defrost cycle driving up energy use at some expected interval. A threshold can be set to trigger if this defrost cycle fails to trigger or has started to trigger too often. Multiple scenarios can be set for any given piece of equipment. While a refrigerator used in the example may be limited to it’s compressor, its defrost cycle and perhaps an icemaker, fan, and lights, an HVAC unit or other more complex machinery may have many more variables and many more patterns to monitor that can be saved into the database such that table of use patterns and deviations can be used to determine what may be causing the deviation from the expected power signature.” (Emphasis added). As shown here, the Applicant’s disclosure discusses analyzing changes in usage of equipment over time and how the equipment is used. Additionally, this disclosure discloses that monitoring patterns of usage in equipment and saving it in a database, which can be used to determine why deviations from an expected signature. Notably, this disclosure does not encompass the claimed steps of deriving an expected power signature for equipment based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. With regards to paragraph 144, it is noted that the specification states, “Smart meters. Use of power “signatures” (analyzed power wave forms) to identify devices and capture data about the specific equipment in use to create a map of the specific equipment. APIs enable data integration with the system.” This disclosure refers to the functions of smart meters in a Peak Demand Management system (as set forth in paragraph 130); and does not encompass the claimed steps of deriving an expected power signature for equipment based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. Additionally, with respect to claim 4 of 17018828 (quoted above), it is noted that the specific elements claimed in the current claims, deriving an expected power signature for equipment based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment, is not found in claim 4 of 17018828. Regarding the Applicant’s argument concerning figures 6-16, it is noted that these are a series of bar and line graphs representing various data recordings, and explicitly do not disclose any steps or functions, and thus can not provide evidence that the Applicant’s original disclosure provides support for the specifically rejected claim element. Finally, with respect to the Applicant’s argument that the existence of a double patenting rejection means that this claim cannot have a rejection under 112a for reciting new matter, the Examiner is not persuaded. As discussed above, the findings of Obvious-Type Double Patenting with a secondary reference is proper, and the rejection specifically identified elements that were not in the original reference Patent 12106324, but found in additional art. With regards to a rejection under 35 USC 112a, it is noted that the Applicant has claimed new matter that is not supported by the original written description. The Applicant’s clear lack of written description support for the specific claim element does not affect an analysis under Double Patenting, nor does an analysis under Double Patenting affect the analysis under written description support. The Applicant has thus failed to show that they had possession of the claimed invention at the original time of filing, and the Examiner is not persuaded of error. Therefore, the Examiner maintains that this rejection is proper.
Applicant's arguments filed 17 August 2025 with respect to the 112a rejection of claim 10 have been fully considered but they are not persuasive.
With respect to claim 10, the Applicant argues on page 10 of their response, “A similar argument and similar paragraphs are relevant to point 37 of the office action starting on Page 20. Here, examiner rejects Claim 10 in a somewhat similar manner to Claim 1 but in regards to a different limitation. [00144] describes Use of power “signatures” (analyzed power wave forms) to identify devices and capture data about the specific equipment in use to create a map of the specific equipment. APIs enable data integration with the system. Figures 10A and B provide specific examples of the wave forms. Examiner does not address this in the office action and this disclosure is found in the parent case. The Examiner respectfully disagrees with the Applicant’s interpretation of the grounds of the previous rejection, and the bounds of the original disclosure. With regards to the current rejection, it is noted that claim 10 states, “wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network.” With regards to paragraph 144, it is noted that the specification states, “Smart meters. Use of power “signatures” (analyzed power wave forms) to identify devices and capture data about the specific equipment in use to create a map of the specific equipment. APIs enable data integration with the system.” This disclosure refers to the functions of smart meters in a Peak Demand Management system (as set forth in paragraph 130); and does not encompass the claimed steps of determining a measured power signature of the one of the plurality of pieces of equipment by said software analyzing power wave form data received from one or more of said plurality of sensors via said network. Notably, paragraph 144 refers to using power signatures (analyzed power wave forms) to identify devices and capture data about equipment to create a map of the equipment, which is not the same as determining a measured power signature of the one of the plurality of pieces of equipment by said software analyzing power wave form data received from one or more of said plurality of sensors via said network. It is also noted that Figures 10A and 10B, are two line graphs representing pre-installation and post-installation energy usage of equipment that’s in a preventative maintenance program; which does not disclose the claimed determining a measured power signature of the one of the plurality of pieces of equipment by said software analyzing power wave form data received from one or more of said plurality of sensors via said network. As such, the Examiner is not persuaded of error, and the Examiner maintains that this rejection is proper.
Applicant's arguments filed 17 August 2025 with regards to the 101 rejection have been fully considered but they are not persuasive.
With respect to claim 1, the Applicant argues on page 11 of their response, “Claim 1 recites ‘wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment’ At Page 24, examiner quotes only part of this limitation in that Page 24 states at lines 1-2 ‘wherein an expected power signature for one of the plurality of pieces of equipment is derived,’ and examiner does not reference ‘based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment’. As such, examiner's rejection is incomplete and examiner has not considered all limitations of the claim.” The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements under 35 USC 101, the bounds of the claimed invention, and the grounds of the previous and current rejection. In this case, the Examiner notes that claim 1 states, “wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment.” In this case, the rejection stated in paragraph 39, “Claims 1-9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite … wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment, and wherein a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and software executing on the computer generating an equipment alert if the measured power signature deviates a threshold value from the expected power signature.” Paragraph 40 of said action continues, “The limitations of receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period, measuring an energy usage of at least one piece of equipment at the facility, and comparing the energy usage to baseline energy usage, wherein an expected power signature for one of the plurality of pieces of equipment is derived, and a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and software executing on the computer generating an equipment alert if the measured power signature deviates a threshold value from the expected power signature; as drafted, under the broadest reasonable interpretation, encompasses the performance of commercial activities (including managing business relations and sales activities), the management of relationships or behaviors between people, the performance of mathematical concepts, and the performance of mental activities, with the use of computers as tools. That is, the claim recites the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In particular, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, and applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, encompasses a human observing and collecting information on energy usage, determining an average usage, and applying a discount rate to the average; which as elements that can be done in the human mind (observation, evaluation, judgement). In addition, the collection of energy usage information for different period, determining a baseline usage, and applying a rate; encompasses the performance of mathematical concepts. In addition, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage; encompasses the generation of average usage of energy based on previous usage, and determining expected consumption in the future, which is the management of commercial activities, such as managing/predicting user purchases of service in the future. In addition, generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period; encompasses the management of commercial activities, including issuing bills for services and receiving payment for those services. In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline usage, determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined encompasses elements that can be performed in the human mind (observation, elevation, judgement, opinion). In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to stored information, and determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined; encompasses the management of commercial activities, including comparing rendered services to stored information, and determining anomalous power signatures based on comparing consumption to the expected consumption, which is the management of sales activities and business relations. Thus, the claims under the broadest reasonable interpretation, recite elements that fall into the “Mental Processes” grouping of abstract ideas, the “Mathematical Concepts” grouping of abstract ideas, and the “Certain Methods of Organizing Human Activities” grouping of abstract ideas. Therefore the claims recite an abstract idea.” (Emphasis added). As shown here, the Examiner explicitly considered the elements of the claims, and identified the element of deriving expected power signatures for pieces of equipment as reciting the management of sales activities and business relations, elements that can be performed in the human mind (observation, elevation, judgement, opinion). Notably, the element that the Applicant asserts was not considered, “based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment,” is just a further description of the recited step itself. In this case, the omission of the specific text in this portion of the rejection is merely as a manner of brevity, and is not reflective that the text of the claimed element was not considered or and is no indicative that it is an additional element, specifically because rejection states that the claimed step of deriving expected power signatures of equipment is abstract. Thus, the Applicant’s argument is not persuasive, and the Examiner maintains that this rejection is proper.
The Applicant continues on pages 12 and 13 of their response:
“In specific reference to the examples of diagnosing problems/issues with equipment, the following example paragraphs explain several of the issues that Applicant’s system solves:
For example [0004] states: The actual performance of the upgrades is difficult to measure, as few solutions exist that provide a realtime measurement capability granular enough for effective management. The measurement, control and management of energy consumption is a secondary task the business is concerned with and energy management typically does not fall within the expertise of the business entity. Additionally, outsourcing this function is not easy.
[0005] further describes: Managing the whole gamut of devices installed requires integration with software systems to measure and collect this data and to make control decisions based on a holistic view. No such system is currently able to achieve this type of over-arching and precise control.
Additionally, [0093]-[0094] provides further discussion of examples of how the equipment signature is used so that it is possible to identify when the device is not working properly. There is no indication that this can be done in the prior art. Rather what would usually be required in order to determine that, for example, a cooling unit is low on refrigerant would be for a technician to actually inspect the HVAC device and identify the problem.”
The Applicant continues on pages 14 and 15 of their response:
“Applicant’s solution enables recognition of problems through use of the signature that, for example, looks to power wave form data for clues as to what may be going wrong. Applicant provides specific non-limiting examples of how this is implemented in Paragraphs [0095]-[0103], further elaborating on how Applicant’s claims provide ‘something more’ and thus meet the eligibility test.
Given that the ability to alert doctors of medical records changes is eligible (PEG 42) despite conversion from non-standard to standard format being found in the prior art and that the machine learning example of PEG 39 is also eligible and given that examiner agrees that applicant’s claims are novel and non-obvious, the rejection should be withdrawn. Examiner has provided no evidence to support the conclusion that the limitation in question fails to provide “something more” especially in the context of the ability to identify problems with equipment remotely which provides a significant advantage over the prior art methods where the problem would have to manifest itself in a way that is noticeable for a technician to be called when that problem could have been causing drops in efficiency for months before it is identified, leading to a significant waste of energy and money.”
The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements under 35 USC 101, the bounds of the claimed invention, and the grounds of the previous and current rejection. First, with respect to the Applicant’s argument that the claimed invention solves a technical problem, the Examiner is not persuaded. In this case, the Applicant has pointed to paragraphs 4 and 5 of their specification as setting forth this problem, however the Examiner is not persuaded. In particular, paragraph 2 states, “Technological advances driven by a desire for energy savings and the sensitivity to environmental concerns continue to fuel the availability of new and improved devices and materials, which result in more efficient energy usage. These include more efficient lighting, HVAC systems, construction materials, components and smart devices. IoT (Internet of Things) sensors and controls capable of switching these devices on and off, adjusting their settings, as well as monitoring their operation and their efficiency add a new dimension of software control to obtaining energy efficiency. The average company or individual is rarely able to effectively navigate this ever-changing maze of options that are appearing on the market at an accelerating pace.” (Emphasis added). Paragraph 3 continues, “The management and control of energy usage and related services is difficult for commercial establishments to manage. Piecemeal installation of energy efficient upgrades or smart energy control devices can have a greater or lesser impact depending on installation, operation and maintenance of the equipment. For example, a company may spend resources to install more energy efficient equipment, however, poor maintenance or improper installation can cause the new equipment to wear out quickly or to run outside of the manufacturer’s estimated guidelines resulting in a much lower return on investment than expected. This challenge becomes even more difficult where an entity has multiple commercial establishments in geographically and climate diverse locations.” (Emphasis added). Paragraph 4 continues, “Once installed these upgrades need to be managed to ensure a proper return on the reduction of energy expenses. The actual performance of the upgrades is difficult to measure, as few solutions exist that provide a realtime measurement capability granular enough for effective management. The measurement, control and management of energy consumption is a secondary task the business is concerned with and energy management typically does not fall within the expertise of the business entity. Additionally, outsourcing this function is not easy.” (Emphasis added). Paragraph 5 continues, “More recently, there has been a significant expansion in the availability of IoT (Internet of Things) devices that are considered “smart” because these devices are remotely controllable, i.e. via a network connection, such as, the Internet or a mobile device. The difficulty with these devices is that, again they represent a fragmented set of devices that are not integrated and require the company to install and manage the devices and their controllers. This is often not practical or possible. Furthermore, these devices do not integrate well with the decision process as to when to use renewable versus utility supplier power and how and when the utility supplier charges for energy usage, including complex demand charge management where, for example, the rate changes based on the peak or maximum energy usage rate during a given time period. Most of these devices are configured to be controlled based on set schedules only and without regard to actual usage, time of usage or usage cycling. Further, there is no knowledge of usage of concurrent devices, other upgrades, or demand. Even if these devices offer some individual device level utilization measurement capability, demand peak and peak management metrics are related to the energy utilization of the facility as a whole and not any single device. Without knowledge of the overall utilization of energy, the control and energy savings cannot be done efficiently. Managing the whole gamut of devices installed requires integration with software systems to measure and collect this data and to make control decisions based on a holistic view. No such system is currently able to achieve this type of over-arching and precise control.” (Emphasis added). As shown and emphasized here, the Applicant has not set forth a problem with diagnosing problems/issues with equipment, as argued, but instead has discussed problems with managing and controlling energy efficient devices, adjusting settings, and monitoring operations in a commercial setting. Additionally, the Applicant has disclosed problems in measuring performance of equipment, and the issues with smart devices and their controllers not being integrated and having to be installed separately. It is noted that these issues are problems in a commercial setting, specifically, what devices to install and how to schedule their use, not in a problem regarding a specific technology. With regards to the Applicant’s argued claims, the Applicant has failed to identify any elements of the claims that would be considered an additional element that would improve computer functionality, another technology, or technical field; nor have they identified any elements that address any of these problems the Applicant has cited. As such, the Applicant’s argument is not persuasive. Second, with regards to the Applicant’s argument with regards to Applicant’s arguments that paragraphs 93 and 94 provide examples of how the equipment signature is used so that it is possible to identify when the device is not working properly, and that there is no indication that this can be done in the prior art, the Examiner is not persuaded that this is sufficient to overcome the 101 rejection. In this case, paragraph 93 states, “When monitoring energy usage, the system does not simply look at energy usage as a whole being higher or lower. A specific signature or energy usage profile may be examined and used as a comparison in order to both determine a potential problem as well as narrow down the potential causes for such an issue. This method of fingerprinting particular equipment or events serves as a signature for identification. Take for example a compressor in a commercial refrigerator. When such a unit is first purchased it should work in a consistent fashion with other similar units. It is expected that units of the same model from the same manufacturer will perform with very similar is not almost identical profiles. Further, units of the same size and power from different manufacturers will also be expected to perform similarly. When performing upgrades and enhancements, equipment is typically selected with a known power signature or profile. The system includes a database of known behavior (operation or power signature) with an expected profile in a variety of deployments. Further, as the equipment ages, a deterioration of performance is expected and this too is factored into the expected behavior in the database.” (Emphasis added). Paragraph 94 continues, “Unlike other systems that may measure overall energy usage or energy usage over some interval, the disclosed invention measures not only how much energy is used but also how it is used and the pattern or signature of use. This is determined through the knowledge of how a given piece of equipment is expected to be used in the context of where it is deployed and under normal circumstances. A signature pattern of energy use manifests itself allows the detection of anomalies and the accurate prediction of usage by using pattern matching techniques and comparisons with baseline signatures generated from the equipment.” (Emphasis added). As shown and emphasized here, the Applicant’s specification has set forth the use of a database of known behavior (power signatures), in order to identify problems in equipment. Additionally, as shown and emphasized here, the specification discloses measuring how much energy usage, and the pattern or signature of use, in order to detect anomalies and make accurate predictions of usage. This disclosure does not set forth or describe an improvement in technology, another technology, or technical field; and instead, is reciting the use of historically known information and measured information to identify discrepancies, which is a part of the abstract idea. Additionally, it is noted Applicant’s argument has failed to identify what elements of the claim they view as reflecting any supposed improvement in technology that is disclosed in this section of their specification. MPEP 2106.05(a) states, “If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology. An indication that the claimed invention provides an improvement can include a discussion in the specification that identifies a technical problem and explains the details of an unconventional technical solution expressed in the claim, or identifies technical improvements realized by the claim over the prior art.” (Emphasis added). It is also noted that MPEP 2106.05(a)(II) states, “Notably, the court did not distinguish between the types of technology when determining the invention improved technology. However, it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology. For example, in Trading Technologies Int’l v. IBG, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir. 2019), the court determined that the claimed user interface simply provided a trader with more information to facilitate market trades, which improved the business process of market trading but did not improve computers or technology.” (Emphasis added). As shown and emphasized in these sections, the Applicant’s disclosure must set forth and describe the improvement in computer functionality, another technology or technical field in something more than a conclusory statement of improvement, and such that one of ordinary skill would recognize said improvement. Additionally, as shown and emphasized here, an improvement in the abstract idea itself, is not an improvement in technology. With regards to the Applicant’s argued sections of their specification, it is noted that as discussed above, the Applicant has failed to show an improvement in computer functionality, another technology or technical field; and instead, they have instead shown an improvement in the abstract idea itself. It is also noted, that the Applicant’s argument fails to identify any elements of their claim which would reflect any supposed improvement, and as such, their argument is deemed not persuasive. Third, with respect to the Applicant’s argument that, “There is no indication that this can be done in the prior art. Rather what would usually be required in order to determine that, for example, a cooling unit is low on refrigerant would be for a technician to actually inspect the HVAC device and identify the problem,” the Examiner is not persuaded this is relevant to the discussion of 35 USC 101. Notably, MPEP 2106.05(I) states, “Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting "the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101 "). As made clear by the courts, the "‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter." Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty."). In addition, the search for an inventive concept is different from an obviousness analysis under 35 U.S.C. 103. See, e.g., BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016) ("The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. . . . [A]n inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces."). Specifically, lack of novelty under 35 U.S.C. 102 or obviousness under 35 U.S.C. 103 of a claimed invention does not necessarily indicate that additional elements are well-understood, routine, conventional elements. Because they are separate and distinct requirements from eligibility, patentability of the claimed invention under 35 U.S.C. 102 and 103 with respect to the prior art is neither required for, nor a guarantee of, patent eligibility under 35 U.S.C. 101. The distinction between eligibility (under 35 U.S.C. 101 ) and patentability over the art (under 35 U.S.C. 102 and/or 103 ) is further discussed in MPEP § 2106.05(d).” (Emphasis added). As show and emphasized here, the findings of whether a claim recites novel or non-obvious material, is of no relevance as to whether claims are directed to patent eligible subject matter under 35 USC 101. As such, the Applicant’s argument as to what the prior art teaches and how the Applicant’s invention differs from it, is of no relevance to 35 USC 101. Fourth, with respect to the Applicant’s argument that, “Applicant’s solution enables recognition of problems through use of the signature that, for example, looks to power wave form data for clues as to what may be going wrong. Applicant provides specific non-limiting examples of how this is implemented in Paragraphs [0095]-[0103], further elaborating on how Applicant’s claims provide ‘something more’ and thus meet the eligibility test,” the Examiner is not persuaded. In this case, it is noted that the Applicant has generally referenced examples in their specification, without any discussion of the claims themselves. As it is determined that the claims are directed to non-patent eligible subject matter, and that any disclosure in the specification that supports patent eligible subject matter must be reflected in the claims, the Applicant’s general argument towards example implementations of the invention is not persuasive at showing that the claims are directed to patent eligible subject matter. Fifth, with respect to the Applicant’s argument that, “Given that the ability to alert doctors of medical records changes is eligible (PEG 42) despite conversion from non-standard to standard format being found in the prior art,” “that the machine learning example of PEG 39 is also eligible and given that examiner agrees that applicant’s claims are novel and non-obvious, the rejection should be withdrawn,” and “Examiner has provided no evidence to support the conclusion that the limitation in question fails to provide “something more” especially in the context of the ability to identify problems with equipment remotely which provides a significant advantage over the prior art methods where the problem would have to manifest itself in a way that is noticeable for a technician to be called when that problem could have been causing drops in efficiency for months before it is identified, leading to a significant waste of energy and money,” the Examiner is not persuaded. Notably, the Office stated that Example 42 was found eligible because, “The claim recites a combination of additional elements including storing information, providing remote access over a network, converting updated information that was input by a user in a non-standardized form to a standardized format, automatically generating a message whenever updated information is stored, and transmitting the message to all of the users. The claim as a whole integrates the method of organizing human activity into a practical application. Specifically, the additional elements recite a specific improvement over prior art systems by allowing remote users to share information in real time in a standardized format regardless of the format in which the information was input by the user. Thus, the claim is eligible because it is not directed to the recited judicial exception (abstract idea).” (Emphasis added). As shown here, the Office specifically identified the combination of elements in the claims, both the abstract idea and the additional elements, and relied on the specification to show that it provided a technical improvement. Additionally, with regards to Example 39, the Office stated, “The claim does not recite any of the judicial exceptions enumerated in the 2019 PEG. For instance, the claim does not recite any mathematical relationships, formulas, or calculations. While some of the limitations may be based on mathematical concepts, the mathematical concepts are not recited in the claims. Further, the claim does not recite a mental process because the steps are not practically performed in the human mind. Finally, the claim does not recite any method of organizing human activity such as a fundamental economic concept or managing interactions between people. Thus, the claim is eligible because it does not recite a judicial exception.” (Emphasis added). In this case, has been shown the claimed example did not recite any elements that fall into one of the abstract groupings. As discussed above, the Applicant has failed to show their claimed invention recites an improvement in computer functionality, another technology, or technical field. Additionally, as the Applicant’s claims do recite an abstract idea, the relevancy of Example 39 has not been shown. Additionally, with regards to the Applicant’s argument that the, “Examiner has provided no evidence to support the conclusion that the limitation in question fails to provide “something more,” the Examiner notes that a showing of evidence is only relevant when identifying elements as well-understood, routine and conventional activity (MPEP 2106.05(d), “A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination.” (Emphasis added)). With regards to MPEP 2106.05(a)-(c) and (e)-(h) the Examiner notes that the previous rejection has conducted this analysis. Specifically see paragraphs 41 and 42 of the Non-Final Rejection mailed 19 May 2025. It is also noted that with respect to the Applicant’s argument with regards to avoiding having to call for a technician when a problem is identified, it is noted that the Applicant has failed to show how this is not business problem, and in fact a problem in technology. Notably, the Applicant has stated this leads to significant waste of energy and money, which would be problems in a business and used to identify when equipment needs to be addressed, and not a problem in technology. It is also noted, that the Applicant has failed to show how the claims recite elements that would reflect any of these improvements, and in a manner that would add significantly more to the abstract idea. As such, the Examiner is not persuaded of error, and the Examiner maintains that this rejection is proper.
With respect to claim 10, the Applicant argues on page 15 of their response, “Claim 10 recites ‘wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network and said software compares the measured power signature to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated’. Examiner asserts on Page 32 of the Office Action that the foregoing ‘encompasses the management of commercial activities, including comparing rendered services to stored information...’. However, examiner has overlooked that this involves a computer solution to a computer problem as the software is determining the power signature by analyzing ‘power wave form data received from one or more of said plurality of sensors...’. There is no indication that this information is ‘the management of sales activities and business relations’ rather, there are specific sensors used in order to capture this wave form data so it can be analyzed to determine the power signature as claimed. Analyzing waveform data to determine the power signature of equipment is not related to ‘managing business relations and sales activities as examiner asserts on Page 30. Furthermore, the mere ‘performance of mathematical concepts’ is not of itself disqualifying as a practical application includes first analyzing the waveform data to determine the signature, then comparing that to the expected signature and issuing an alert if there is too great of a deviation. There is no indication that any of these steps accomplished in the human mind would render any fruitful information other than a mess of numbers on paper without any practical effect enabling the savings of energy by identifying equipment that is not working properly.” The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements under 35 USC 101, the bounds of the claimed invention, and the grounds of the previous and current rejection. With respect to claim 10, paragraph 44 of the Non-Final Rejection stated, “Claims 10-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite … wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for the one of the plurality of pieces of equipment or combinations thereof, and wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network and said software compares the measured power signature to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.” The Non-Final Rejection continued in paragraph 46, “The limitations of … wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database, and wherein a measured power signature of the equipment is determined by analyzing power wave form data, comparing the measured power signature to the expected power signature, and generating an alert if the measured power signature deviates a threshold value from the expected power signature; as drafted, under the broadest reasonable interpretation, encompasses the performance of commercial activities (including managing business relations and sales activities), the management of relationships or behaviors between people, the performance of mathematical concepts, and the performance of mental activities, with the use of computers as tools. That is, the claim recites the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In particular, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, and applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, encompasses a human observing and collecting information on energy usage, determining an average usage, and applying a discount rate to the average; which as elements that can be done in the human mind (observation, evaluation, judgement). In addition, the collection of energy usage information for different period, determining a baseline usage, and applying a rate; encompasses the performance of mathematical concepts. In addition, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage; encompasses the generation of average usage of energy based on previous usage, and determining expected consumption in the future, which is the management of commercial activities, such as managing/predicting user purchases of service in the future. In addition, generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period; encompasses the management of commercial activities, including issuing bills for services and receiving payment for those services. In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline usage, determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined encompasses elements that can be performed in the human mind (observation, elevation, judgement, opinion). In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to stored information, and determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined; encompasses the management of commercial activities, including comparing rendered services to stored information, and determining anomalous power signatures based on comparing consumption to the expected consumption, which is the management of sales activities and business relations. Thus, the claims under the broadest reasonable interpretation, recite elements that fall into the “Mental Processes” grouping of abstract ideas, the “Mathematical Concepts” grouping of abstract ideas, and the “Certain Methods of Organizing Human Activities” grouping of abstract ideas. Therefore the claims recite an abstract idea.” (Emphasis added). As shown and emphasized here, the Examiner previously identified determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline usage, determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined, as encompassing elements that can be performed in the human mind (observation, elevation, judgement, opinion); and, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to stored information, and determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined; as encompassing the management of commercial activities. It is also noted, as shown and emphasized above, that the Examiner identified the generic computer elements being used as a tool to carry out the abstract idea. As stated in MPEP 2106.04(a)(2)(II), “Finally, the sub-groupings encompass both activity of a single person (for example, a person following a set of instructions or a person signing a contract online) and activity that involves multiple people (such as a commercial interaction), and thus, certain activity between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within the "certain methods of organizing human activity" grouping. It is noted that the number of people involved in the activity is not dispositive as to whether a claim limitation falls within this grouping. Instead, the determination should be based on whether the activity itself falls within one of the sub-groupings.” (Emphasis added). Additionally, MPEP 2106.04(a)(2)(III)(C) states, “Claims can recite a mental process even if they are claimed as being performed on a computer. The Supreme Court recognized this in Benson, determining that a mathematical algorithm for converting binary coded decimal to pure binary within a computer’s shift register was an abstract idea. The Court concluded that the algorithm could be performed purely mentally even though the claimed procedures "can be carried out in existing computers long in use, no new machinery being necessary." 409 U.S at 67, 175 USPQ at 675. See also Mortgage Grader, 811 F.3d at 1324, 117 USPQ2d at 1699 (concluding that concept of "anonymous loan shopping" recited in a computer system claim is an abstract idea because it could be "performed by humans without a computer").” (Emphasis added). The MPEP continues in the same section, “Using a computer as a tool to perform a mental process. An example of a case in which a computer was used as a tool to perform a mental process is Mortgage Grader, 811 F.3d. at 1324, 117 USPQ2d at 1699. The patentee in Mortgage Grader claimed a computer-implemented system for enabling borrowers to anonymously shop for loan packages offered by a plurality of lenders, comprising a database that stores loan package data from the lenders, and a computer system providing an interface and a grading module. The interface prompts a borrower to enter personal information, which the grading module uses to calculate the borrower’s credit grading, and allows the borrower to identify and compare loan packages in the database using the credit grading. 811 F.3d. at 1318, 117 USPQ2d at 1695. The Federal Circuit determined that these claims were directed to the concept of "anonymous loan shopping", which was a concept that could be "performed by humans without a computer." 811 F.3d. at 1324, 117 USPQ2d at 1699. Another example is Berkheimer v. HP, Inc., 881 F.3d 1360, 125 USPQ2d 1649 (Fed. Cir. 2018), in which the patentee claimed methods for parsing and evaluating data using a computer processing system. The Federal Circuit determined that these claims were directed to mental processes of parsing and comparing data, because the steps were recited at a high level of generality and merely used computers as a tool to perform the processes. 881 F.3d at 1366, 125 USPQ2d at 1652-53. “ (Emphasis added). As shown and emphasized here, the use of a computer as a tool to carry out the claimed elements, does not render them any less abstract in terms of whether they recite an abstract idea that falls into the “Certain Methods of Organizing Human Activity,” or the “Mental Processes” grouping of abstract ideas. Thus, with respect to the Applicant’s argument that the, “examiner has overlooked that this involves a computer solution to a computer problem as the software is determining the power signature by analyzing ‘power wave form data received from one or more of said plurality of sensors...’, the Examiner is not persuaded, as the claimed elements were specifically addressed, analyzed, shown to recite an abstract idea, and the computer software elements conducting the process, was shown to merely be invoked as a tool to carry out the abstract idea. Additionally, contrary to the Applicant’s assertion that, “There is no indication that this information is ‘the management of sales activities and business relations,’ the Examiner notes that the claimed elements were shown to recite the management of sales activities and business relations. It is noted that with respect to “analyzing power wave form data received,” it is noted that no special definition or steps are included in said “analyzing” step, and as such, the broadest reasonable interpretation is applied to the claims, which is determining a measured power signature from collected data, as is recited in the rejection. It is also noted that the use of sensors to collect said data, is an additional element, specifically a recation of “apply it,” as discussed in paragraph 46 of the Non-Final Rejection. Therefore, the Examiner maintains that this rejection is proper.
The Applicant continues on page 16 of their response, “This is similar to Example 42 of the Patent Eligibility Guidelines examples which involves transmission of notifications when medical records are updated. Here, updated information is stored and added into a patient’s medical records and a message is generated and transmitted to all users so that they have access to up-to-date patient information. As stated in the eligibility guidelines, this relates to organizing human activity of updating a patient’s medical records. In contrast, the instant claims involve signal recognition technology around identifying a power signature of a physical device, not just information input by someone about their (or their patient's) medical condition. The ‘additional elements’ which were deemed sufficient for eligibility as identified in Example 42 include storing information, providing remote access, converting updated information from a non-standardized format to a standardized format, and generating and sending a message as this is a “specific improvement over prior art systems by allowing remote users to share information in real time in a standardized format regardless of the format in which the information was input by a user’. In the context of medical records, this was deemed to be sufficient additional elements.” The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements under 35 USC 101, the bounds of the claimed invention, and the grounds of the previous and current rejection. With regards to Example 42, the Examiner notes that the Example’s specification stated, “
“These records are often stored locally on a computer in a non-standard format selected by whichever hardware or software platform is in use in the medical provider’s local office. It is difficult for medical providers to share updated information about a patient’s condition with other health care providers using current patient management systems, due to the above challenges. This can lead to problems with managing prescriptions or having patients duplicate tests, for example. Currently, medical providers must continually monitor a patient’s medical records for updated information, which is often-times incomplete since records in separate locations are not timely or readily-shared or cannot be consolidated due to format inconsistencies as well as physicians who are unaware that other physicians are also seeing the patient for varying reasons.
To solve this problem, applicant has invented a network-based patient management method that collects, converts and consolidates patient information from various physicians and health-care providers into a standardized format, stores it in network-based storage devices, and generates messages notifying health care providers or patients whenever that information is updated. The method provides a graphical user interface (GUI) by a content server, which is hardware or a combination of both hardware and software. A user, such as a health care provider or patient, is given remote access through the GUI to view or update information about a patient’s medical condition using the user’s own local device (e.g., a personal computer or wireless handheld device). When a user wants to update the records, the user can input the update in any format used by the user’s local device. Whenever the patient information is updated, it will first be converted into the standardized format and then stored in the collection of medical records on one or more of the network-based storage devices. After the updated information about the patient’s condition has been stored in the collection, the content server, which is connected to the network-based storage devices, immediately generates a message containing the updated information about the patient’s condition. This message is transmitted in a standardized format over the computer network to all physicians and health-care providers that have access to the patient’s information (e.g., to a medical specialist to review the updated information about the patient’s medical condition) so that all users can quickly be notified of any changes without having to manually look up or consolidate all of the providers’ updates. This ensures that each of a group of health care providers is always given immediate notice and access to changes so they can readily adapt their own medical diagnostic and treatment strategy in accordance with other providers’ actions. The message can be in the form of an email message, text message, or other type of message known in the art.” (Emphasis added).
It is also noted that the Office identified that this Example’s claim recited an abstract idea, but was integrated into a practical application when considering the additional elements in combination with the abstract idea, and in view of the specification. Specifically, the Office stated, “The claim recites a combination of additional elements including storing information, providing remote access over a network, converting updated information that was input by a user in a non-standardized form to a standardized format, automatically generating a message whenever updated information is stored, and transmitting the message to all of the users. The claim as a whole integrates the method of organizing human activity into a practical application. Specifically, the additional elements recite a specific improvement over prior art systems by allowing remote users to share information in real time in a standardized format regardless of the format in which the information was input by the user. Thus, the claim is eligible because it is not directed to the recited judicial exception (abstract idea).” (Emphasis added). In this case, the Office explained in the Example that the additional elements recited a specific improvement in the technology, which is supported by the Example’s specification. Unlike this Example, the Applicant has not provided such evidence in their specification, nor have they identified the elements that would reflect such an improvement. As discussed above, MPEP 2106.05(a) states, “If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology. An indication that the claimed invention provides an improvement can include a discussion in the specification that identifies a technical problem and explains the details of an unconventional technical solution expressed in the claim, or identifies technical improvements realized by the claim over the prior art.” (Emphasis added). The MPEP continues, “After the examiner has consulted the specification and determined that the disclosed invention improves technology, the claim must be evaluated to ensure the claim itself reflects the disclosed improvement in technology. Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316, 120 USPQ2d 1353, 1359 (Fed. Cir. 2016) (patent owner argued that the claimed email filtering system improved technology by shrinking the protection gap and mooting the volume problem, but the court disagreed because the claims themselves did not have any limitations that addressed these issues). That is, the claim must include the components or steps of the invention that provide the improvement described in the specification.” (Emphasis added). In this case, the Applicant has not shown an improvement in their specification, instead arguing that Example 42 was found eligible, and so must their own application. Additionally, it is noted that the Applicant has failed to identify the claimed additional elements that reflect said improvement, and thus, their argument has failed to be persuasive as it is merely a conclusory statement of patentability. Therefore, the Examiner maintains that this rejection is proper.
The Applicant continues on page 17 of their response, “Applicant provides the ability to remotely identify the performance of physical equipment at various sites and monitor that equipment to avoid a scenario where the equipment is behaving in a way that is less optimal than expected. This enables the interested party(ies) to determine when equipment is malfunctioning or when maintenance is needed so as to avoid excessive energy use. The solution was provided given that the malfunctioning or insufficient maintenance is not something that can ordinarily be determined by the casual observer and instead usually requires a technician to diagnose the issue. The use of the claimed signature enables Applicant’s system to monitor and identify issues remotely before significant energy is wasted on improper functioning equipment. Thus, examiner has taken the claims out of context without considering the context of the invention and the combination as a whole and has further considered the signature information and the wave form analysis to not qualify as “something more’ without any evidence when PEG 42 supports the opposite conclusion — that Applicant provides “something more” than the abstract idea, allowing the remote identification and monitoring of equipment much like the patient data in PEG 42 can be updated and other physicians/users notified of these changes so the user has up to date information.” The Examiner respectfully disagrees with the Applicant’s interpretation of the requirements under 35 USC 101, the bounds of the claimed invention, and the grounds of the previous and current rejection. First, the Examiner notes that claim 10 states:
“the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party’s past energy usage for the first period of time;
the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party’s past energy usage for the second period of time;
the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility;
the software executing on the computer generating an energy bill for a third period of time;
issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period;
wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period;
measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage;
transmitting the measured energy usage to the computer via the network;
software executing on the computer comparing the actual energy usage to the discounted baseline energy usage; and
wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for the one of the plurality of pieces of equipment or combinations thereof, and
wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network and said software compares the measured power signature to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.” (Emphasis added).
As shown and emphasized here, the Applicant’s claims are directed towards determining a baseline energy usage based on first and second energy usages and determining a discounted rate to the baseline energy, calculating and issuing an energy bill for a third period of time, a first party issues the bill to a third party, the first party pays a utility bill issued by a second party, comparing a measured energy use to a discounted energy usage, deriving an expected power signature for equipment based on information from a database (including an expected power usage pattern), determining a measured power signature of the equipment by analyzing power wave form data, and issuing an alert if the measured power signature deviates a threshold amount form the expected power signature. In this case, nothing in the claim involves remotely identifying the performance of equipment at various sites, and monitoring that equipment to avoid a scenario where the equipment is behaving in a way that is less optimal than expected, and thus this would be beyond the scope of the claim. Notably, the claimed invention would carry out the exact same steps when an equipment measured power signature does not deviate a threshold amount form the expected power signature, and instead, this deviation merely causes an alert. That is anything occurring after the issuing of an “alert” is beyond the scope of the claims, and would not effect whether the Applicant’s claimed invention is directed to patent eligible subject matter. Additionally, it is noted that nothing in the claims involves malfunctioning equipment or maintenance needed, and as such, these aspects would additionally be beyond the scope of the claims. Additionally, it is noted that at no point in the claims has the Applicant discussed identifying issues remotely, nor any aspect with regards to “before significant energy is wasted on improper functioning equipment.” As such, the Applicant’s arguments that the claims are eligible for similar reasons to Example 42, which provided an improvement in the technology with the recited claim elements, the Applicant’s claims fail at this. Therefore, the Examiner maintains that this rejection is proper.
The Applicant continues on pages 17 and 18 to discuss paragraphs 4, 5, and 93-103 of their specification. It is noted that these paragraphs and arguments were discussed with respect to claim 1 above, which is incorporated here. Therefore, the Examiner maintains that this rejection is proper for similar reasons as noted above.
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16, and 19-27 of U.S. Patent No. 12106324, in view of Tran (US 2014/0129160 A1) (hereinafter Tran).
With respect to claim 1, the current application states:
the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party’s past energy usage for the first period of time;
the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party’s past energy usage for the second period of time;
the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility;
the software executing on the computer generating an energy bill for a third period of time;
issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period and prior to all actual energy usage by the third party for the current billing period wherein the energy bill is an actual energy bill for the third party;
wherein the first-party is obligated to pay a utility bill issued by a second-party for energy usage of the facility during the current billing period;
measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage;
transmitting the measured energy usage to the computer via the network;
software executing on the computer comparing the actual energy usage to the discounted baseline energy usage; and
wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment, and
wherein a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and software executing on the computer generating an equipment alert if the measured power signature deviates a threshold value from the expected power signature.
Claim 16 of US 12106324 states:
the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party's past energy usage for the first period of time;
the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party's past energy usage for the second period of time;
the software executing on the computer determining a baseline energy usage based on the first and second energy usages;
the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility;
the software executing on the computer generating an energy bill for a third period of time;
issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period prior to all actual energy usage by the third party for the current billing period, wherein the energy bill is an actual energy bill for the third party;
wherein the first-party is obligated to pay a utility bill issued by a second-party for energy usage of the facility during the current billing period;
determining an energy usage of at least one piece of equipment at the facility;
comparing the energy usage to a database of information accessible by the computer; and
software executing on the computer adapted to adjust the at least one piece of equipment in the facility based on the comparison of the energy usage to the database of information.
Claim 19 of 12106324 continues:
wherein an expected power signature for the at least one piece of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for at least one piece of equipment or combinations thereof, and wherein a measured power signature of the at least one piece of equipment is compared to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.
As shown and emphasized here, claims 16 and 19 of US 12106324 discloses all of the limitations of claim 1 of the current application. Claim 16 of US 12106324 differs since it further recites additional claim limitations comparing the energy usage to a database of information accessible by the computer; and software executing on the computer adapted to adjust the at least one piece of equipment in the facility based on the comparison of the energy usage to the database of information. However, it would have been obvious to a person of ordinary skill in the art to modify claim 16 of US 12106324 by removing the additional limitations, since the claims of the present application and the claim recited in US 12106324 actually perform a similar function. It is well settled that the omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (CCPA 1963). Also note Ex parte Rainu, 168 USPQ 375 (Bd. App. 1969). Omission of a reference element whose function is not needed would be obvious to one of ordinary skill in the art.
Also, claim 16 of US 12106324 differs since it fails to recite a method wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. Tran discloses describe tracking the historical energy usage for equipment at a building, wherein an expected power signature is determined based on the historic usage and changes in efficiency (See at least paragraphs 7, 11-13, 32, 35-37, and 104-112).
It would have been obvious to one of ordinary skill in the art at the time of the invention to combine the system and method of US 10810690, with the system and method of tracking the historical energy usage for equipment at a building, wherein an expected power signature is determined based on the historic usage and changes in efficiency of Tran. By tracking energy usage and determining expected energy signatures based on the efficiency changes of the equipment, an energy management system will predictably be able to identify anomalies in energy consumption, which can be provided to a user, thus reducing their costs and the wasteful use of energy.
Claim 2 of the current application states, “wherein the expected power signature is dynamic such that it is adjusted based on environmental factors.” It is noted that claim 20 of US 12106324 recites this limitation.
Claim 3 of the current application states, “wherein the environmental factors that are used to adjust the expected power signature are selected from the group consisting of: an air temperature, a humidity, a sun-exposure factor on at least a portion of the facility, a heat index, a wind measurement, a date, a time of day, a season, a geographic location and combinations thereof.” It is noted that claim 21 of US 12106324 recites this limitation.
Claim 4 of the current application states, “wherein a filter is used to filter out deviations of the measured power signature from the expected power signature when a deviation occurs for a time duration of less than a time period (T).” It is noted that claim 22 of US 12106324 recites this limitation.
Claim 5 of the current application states, “wherein if the deviation equals or exceeds time period (T), the equipment alert is generated.” It is noted that claim 23 of US 12106324 recites this limitation.
Claim 6 of the current application states, “wherein the database of information includes power signature information corresponding to a probable malfunction for the one of the plurality of pieces of equipment.” It is noted that claim 24 of US 12106324 recites this limitation.
Claim 7 of the current application states, “wherein the power signature information saved in the database includes data relating to On / Off times, power consumption and combinations thereof for the one of the plurality of pieces of equipment.” It is noted that claim 25 of US 12106324 recites this limitation.
Claim 8 of the current application states, “wherein when the system determines a probable malfunction based on a comparison of the measured power signature to the power signature information saved in the database, the probable malfunction is transmitted to a mobile device.” It is noted that claim 26 of US 12106324 recites this limitation.
Claim 9 of the current application states, “wherein the probable malfunction is selected from the group consisting of: defrost malfunction, compressor malfunction, fan related functions, failed seals of compartment and combinations thereof.” It is noted that claim 27 of US 12106324 recites this limitation.
With respect to claim 10, the current application states:
the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party’s past energy usage for the first period of time;
the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party’s past energy usage for the second period of time;
the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility;
the software executing on the computer generating an energy bill for a third period of time;
issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period;
wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period;
measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage;
transmitting the measured energy usage to the computer via the network;
software executing on the computer comparing the actual energy usage to the discounted baseline energy usage; and
wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for the one of the plurality of pieces of equipment or combinations thereof, and
wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network and said software compares the measured power signature to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.
Claim 16 of US 12106324 states:
the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party's past energy usage for the first period of time;
the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party's past energy usage for the second period of time;
the software executing on the computer determining a baseline energy usage based on the first and second energy usages;
the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility;
the software executing on the computer generating an energy bill for a third period of time;
issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period prior to all actual energy usage by the third party for the current billing period, wherein the energy bill is an actual energy bill for the third party;
wherein the first-party is obligated to pay a utility bill issued by a second-party for energy usage of the facility during the current billing period;
determining an energy usage of at least one piece of equipment at the facility;
comparing the energy usage to a database of information accessible by the computer; and
software executing on the computer adapted to adjust the at least one piece of equipment in the facility based on the comparison of the energy usage to the database of information.
Claim 19 of 12106324 continues:
wherein an expected power signature for the at least one piece of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for at least one piece of equipment or combinations thereof, and wherein a measured power signature of the at least one piece of equipment is compared to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.
As shown and emphasized here, claims 16 and 19 of US 12106324 discloses all of the limitations of claim 10 of the current application. Claim 16 of US 12106324 differs since it further recites additional claim limitations comparing the energy usage to a database of information accessible by the computer; and software executing on the computer adapted to adjust the at least one piece of equipment in the facility based on the comparison of the energy usage to the database of information. However, it would have been obvious to a person of ordinary skill in the art to modify claim 16 of US 12106324 by removing the additional limitations, since the claims of the present application and the claim recited in US 12106324 actually perform a similar function. It is well settled that the omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (CCPA 1963). Also note Ex parte Rainu, 168 USPQ 375 (Bd. App. 1969). Omission of a reference element whose function is not needed would be obvious to one of ordinary skill in the art.
Also, claim 16 of US 12106324 differs since it fails to recite a method wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network. Tran discloses describe tracking the historical energy usage for equipment at a building, wherein the power signature of equipment is determined by analyzing power waveforms received from sensors (See at least paragraphs 7, 11-13, 32, 35-37, and 104-112).
It would have been obvious to one of ordinary skill in the art at the time of the invention to combine the system and method of US 10810690, with the system and method of describe tracking the historical energy usage for equipment at a building, wherein the power signature of equipment is determined by analyzing power waveforms received from sensors of Tran. By tracking energy signatures by analyzing power waveforms, an energy management system will predictably be able to identify anomalies in energy consumption, which can be provided to a user, thus reducing their costs and the wasteful use of energy.
Claim 11 of the current application states, “wherein the expected power signature is dynamic such that it is adjusted based on environmental factors.” It is noted that claim 20 of US 12106324 recites this limitation.
Claim 12 of the current application states, “wherein the environmental factors that are used to adjust the expected power signature are selected from the group consisting of: an air temperature, a humidity, a sun-exposure factor on at least a portion of the facility, a heat index, a wind measurement, a date, a time of day, a season, a geographic location and combinations thereof.” It is noted that claim 21 of US 12106324 recites this limitation.
Claim 13 of the current application states, “wherein a filter is used to filter out deviations of the measured power signature from the expected power signature when a deviation occurs for a time duration of less than a time period (T).” It is noted that claim 22 of US 12106324 recites this limitation.
Claim 14 of the current application states, “wherein if the deviation equals or exceeds time period (T), the equipment alert is generated.” It is noted that claim 23 of US 12106324 recites this limitation.
Claim 15 of the current application states, “wherein the database of information includes power signature information corresponding to a probable malfunction for the one of the plurality of pieces of equipment.” It is noted that claim 24 of US 12106324 recites this limitation.
Claim 16 of the current application states, “wherein the power signature information saved in the database includes data relating to On / Off times, power consumption and combinations thereof for the one of the plurality of pieces of equipment.” It is noted that claim 25 of US 12106324 recites this limitation.
Claim 17 of the current application states, “wherein when the system determines a probable malfunction based on a comparison of the measured power signature to the power signature information saved in the database, the probable malfunction is transmitted to a mobile device.” It is noted that claim 26 of US 12106324 recites this limitation.
Claim 18 of the current application states, “wherein the probable malfunction is selected from the group consisting of: defrost malfunction, compressor malfunction, fan related functions, failed seals of compartment and combinations thereof.” It is noted that claim 27 of US 12106324 recites this limitation.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
With respect to claim 1, the Applicant claims, “wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment.” The Applicant has failed to provide support in their original written description, in the parent application 17/018828, or the grandparent case 16/119479 for this limitation. In particular, the Applicant’s specification fails to disclose determining an expected power signature for a piece of equipment, which is derived based on usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment. Notably, paragraph 76 states, “This baseline utilization is then adjusted according to an appropriate model for the third-party that determines a ‘savings percentage’. Examples include, taking the average usage of the same month during the past two years and subtracting a percentage, taking the lowest value of the same month the last two years and subtracting a percentage and so on. A model is determined by various factors that can determine the savings to be achieved based in part on, the historical energy usage. It will be understood, for example, that a third-party that has recently upgraded the facilities equipment to high efficiency equipment may not realize as much savings through a selected model as another third-party that has very outdated inefficient equipment.” Additionally, paragraph 151 states, “It should be noted, that in addition to equipment upgrades and changes, the process also includes making changes to the Building Management System (BMS) configuration to improve efficiency and the review of air handlers to see if any are not functional.” Notably, as shown and emphasized here, the Applicant’s original disclosure does not provide support for determining an expected power signature for a piece of equipment, which is derived based on usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment, as is claimed currently in this Continuation of 17018828. Notably, if the Applicant were to file this limitation in a Continuation-in-Part, then the application would have support via the original disclosure, however effective priority date would be the date of filing the Continuation-in-Part application, and not those of the Parent or Grandparent. (See MPEP 211.05(B), “The disclosure of a continuation or divisional application cannot include anything which would constitute new matter if inserted in the prior-filed application. A continuation-in-part application may include matter not disclosed in the prior-filed application. See MPEP § 201.08. Only the claims of the continuation-in-part application that are disclosed in the manner provided by 35 U.S.C. 112(a) in the prior-filed application are entitled to the benefit of the filing date of the prior-filed application. If there is a continuous chain of copending nonprovisional applications, each copending application must disclose the claimed invention of the later-filed application in the manner provided by 35 U.S.C. 112(a) in order for the later-filed application to be entitled to the benefit of the earliest filing date. See Regents of the University of Minnesota v. Gilead Scis., Inc., 61 F.4th 1350, 1358, 1360, 2023 USPQ2d 269 (Fed. Cir. 2023) (affirming the PTAB's decision in an inter partes review proceeding and holding that the patentee was not entitled to rely on the earlier filing dates of two nonprovisional applications and a provisional application because the prior-filed applications did not provide sufficient written description to support the invention claimed in the challenged patent).”). Claims 2-9 depend on claim 1, and therefore are also rejected via dependency.
With respect to claim 10, the Applicant claims, “wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network.” The Applicant has failed to provide support in their original written description, in the parent application 17/018828, or the grandparent case 16/119479 for this limitation. In particular, the Applicant’s specification fails to disclose determining a measured power signature for a piece of equipment by software analyzing power wave form data received from one or more of said plurality of sensors via said network. Notably, the Applicant’s specification states in paragraphs 139-144, “Additional measures to increase energy efficiency include:… Smart meters. Use of power “signatures” (analyzed power wave forms) to identify devices and capture data about the specific equipment in use to create a map of the specific equipment. APIs enable data integration with the system.” As shown here, the Applicant has merely disclosed the use of smart meters to capture power signatures and identify devices, which can be used to increase energy efficiency. Notably, this disclosure, which is the sole disclosure of a power wave form, does not disclose determining a measured power signature for a piece of equipment by software analyzing power wave form data received from one or more of said plurality of sensors via said network, as is claimed currently in this Continuation of 17018828. Notably, if the Applicant were to file this limitation in a Continuation-in-Part, then the application would have support via the original disclosure, however effective priority date would be the date of filing the Continuation-in-Part application, and not those of the Parent or Grandparent. (See MPEP 211.05(B), “The disclosure of a continuation or divisional application cannot include anything which would constitute new matter if inserted in the prior-filed application. A continuation-in-part application may include matter not disclosed in the prior-filed application. See MPEP § 201.08. Only the claims of the continuation-in-part application that are disclosed in the manner provided by 35 U.S.C. 112(a) in the prior-filed application are entitled to the benefit of the filing date of the prior-filed application. If there is a continuous chain of copending nonprovisional applications, each copending application must disclose the claimed invention of the later-filed application in the manner provided by 35 U.S.C. 112(a) in order for the later-filed application to be entitled to the benefit of the earliest filing date. See Regents of the University of Minnesota v. Gilead Scis., Inc., 61 F.4th 1350, 1358, 1360, 2023 USPQ2d 269 (Fed. Cir. 2023) (affirming the PTAB's decision in an inter partes review proceeding and holding that the patentee was not entitled to rely on the earlier filing dates of two nonprovisional applications and a provisional application because the prior-filed applications did not provide sufficient written description to support the invention claimed in the challenged patent).”). Claims 11-18 depend on claim 10, and therefore are also rejected via dependency.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-9 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party’s past energy usage for the first period of time; the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party’s past energy usage for the second period of time; the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; the software executing on the computer generating an energy bill for a third period of time; issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period and prior to all actual energy usage by the third party for the current billing period wherein the energy bill is an actual energy bill for the third party; wherein the first-party is obligated to pay a utility bill issued by a second-party for energy usage of the facility during the current billing period; measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage; transmitting the measured energy usage to the computer via the network; software executing on the computer comparing the actual energy usage to the discounted baseline energy usage; and wherein an expected power signature for one of the plurality of pieces of equipment is derived based on determined usage patterns learned over time for the one of the plurality of pieces of equipment which determined usage patterns are indicative of changes in measured efficiency of one of the plurality of pieces of equipment, and wherein a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and software executing on the computer generating an equipment alert if the measured power signature deviates a threshold value from the expected power signature.
The limitations of receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period, measuring an energy usage of at least one piece of equipment at the facility, and comparing the energy usage to baseline energy usage, wherein an expected power signature for one of the plurality of pieces of equipment is derived, and a measured power signature of the one of the plurality of pieces of equipment is compared to the expected power signature and software executing on the computer generating an equipment alert if the measured power signature deviates a threshold value from the expected power signature; as drafted, under the broadest reasonable interpretation, encompasses the performance of commercial activities (including managing business relations and sales activities), the management of relationships or behaviors between people, the performance of mathematical concepts, and the performance of mental activities, with the use of computers as tools. That is, the claim recites the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In particular, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, and applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, encompasses a human observing and collecting information on energy usage, determining an average usage, and applying a discount rate to the average; which as elements that can be done in the human mind (observation, evaluation, judgement). In addition, the collection of energy usage information for different period, determining a baseline usage, and applying a rate; encompasses the performance of mathematical concepts. In addition, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage; encompasses the generation of average usage of energy based on previous usage, and determining expected consumption in the future, which is the management of commercial activities, such as managing/predicting user purchases of service in the future. In addition, generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period; encompasses the management of commercial activities, including issuing bills for services and receiving payment for those services. In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline usage, determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined encompasses elements that can be performed in the human mind (observation, elevation, judgement, opinion). In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to stored information, and determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined; encompasses the management of commercial activities, including comparing rendered services to stored information, and determining anomalous power signatures based on comparing consumption to the expected consumption, which is the management of sales activities and business relations. Thus, the claims under the broadest reasonable interpretation, recite elements that fall into the “Mental Processes” grouping of abstract ideas, the “Mathematical Concepts” grouping of abstract ideas, and the “Certain Methods of Organizing Human Activities” grouping of abstract ideas. Therefore the claims recite an abstract idea.
This judicial exception is not integrated into a practical application. The claims do not recite additional elements that improve the functioning of a computer, another technology, or technical field. The claims do not recite the use of, or apply the abstract idea with, a particular machine, the claims do not recite the transformation of an article from one state or thing into another. Finally, the claims do not recite additional elements that apply or use the abstract idea in some other meaningful way beyond generally linking the use of the abstract idea to a particular technological environment. Instead, the claims recite the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In addition, the claims recite receiving and transmitting data over a network, which is deemed extrasolution activity. Therefore the claims are directed to an abstract idea.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using generic computer elements and machines to perform the steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. In addition, the claims recite receiving and transmitting data (energy usage, energy bill, alerts) over a network, which is deemed well-understood, routine, and conventional activity (MPEP 2106.05(d), “Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)”). The claims are not directed to patent eligible subject matter.
The dependent claims 2-9, taken individually and in an ordered combination, do not recite additional elements that integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself. In particular, the claims further recite that power signatures are dynamic and adjustable based on types of environmental factors; which is deemed further narrowing the field of use by defining the factors of a power signature, which does not integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself (claims 2 and 3). In addition, the claims recite filtering an event when a duration of detection is less than a quantity of time, which encompasses the mental activity (observation, judgement), managing commercial interactions (i.e. not including data in commercial activity analysis), managing interactions and behavior between people (filtering content), and the performance of mathematical concepts (removing sub-data from an overall dataset if the data is not high/long enough); and the thus claims recite an abstract idea (claims 4 and 5). In addition, the claims further define the content stored in a database, such as the reasons for malfunction, which is deemed merely a narrowing of the field of use by defining the content of data stored, which does not recite additional elements that integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself (claims 6-9).
Claims 10-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims recite the computer receiving a first energy usage for the facility for a first period of time corresponding to the third-party’s past energy usage for the first period of time; the computer receiving a second energy usage for the facility for a second period of time corresponding to the third-party’s past energy usage for the second period of time; the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; the software executing on the computer generating an energy bill for a third period of time; issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period; wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period; measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage; transmitting the measured energy usage to the computer via the network; software executing on the computer comparing the actual energy usage to the discounted baseline energy usage; and wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database including an expected power usage pattern based on manufacturer standards or previously determined usage patterns for the one of the plurality of pieces of equipment or combinations thereof, and wherein a measured power signature of the one of the plurality of pieces of equipment determined by said software analyzing power wave form data received from one or more of said plurality of sensors via said network and said software compares the measured power signature to the expected power signature and if the measured power signature deviates a threshold value from the expected power signature an equipment alert is generated.
The limitations of receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period, measuring an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline energy usage, wherein an expected power signature for one of the plurality of pieces of equipment is derived based in part on information from a database, and wherein a measured power signature of the equipment is determined by analyzing power wave form data, comparing the measured power signature to the expected power signature, and generating an alert if the measured power signature deviates a threshold value from the expected power signature; as drafted, under the broadest reasonable interpretation, encompasses the performance of commercial activities (including managing business relations and sales activities), the management of relationships or behaviors between people, the performance of mathematical concepts, and the performance of mental activities, with the use of computers as tools. That is, the claim recites the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In particular, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, and applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, encompasses a human observing and collecting information on energy usage, determining an average usage, and applying a discount rate to the average; which as elements that can be done in the human mind (observation, evaluation, judgement). In addition, the collection of energy usage information for different period, determining a baseline usage, and applying a rate; encompasses the performance of mathematical concepts. In addition, receiving first and second energy usage for the facility for a first and second periods of time corresponding to the third-party's past energy usage for the first and second periods of time, determining a baseline energy usage based on the first and second energy usages, applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage; encompasses the generation of average usage of energy based on previous usage, and determining expected consumption in the future, which is the management of commercial activities, such as managing/predicting user purchases of service in the future. In addition, generating an energy bill for a third period of time, issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period, wherein the first-party pays a utility bill issued by a second-party for energy usage of the facility during the current billing period; encompasses the management of commercial activities, including issuing bills for services and receiving payment for those services. In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to baseline usage, determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined encompasses elements that can be performed in the human mind (observation, elevation, judgement, opinion). In addition, determining an energy usage of at least one piece of equipment at the facility, comparing the energy usage to stored information, and determining expected power signatures for equipment, comparing the measured power signature to an expected signature, and providing an alert if a deviation is determined; encompasses the management of commercial activities, including comparing rendered services to stored information, and determining anomalous power signatures based on comparing consumption to the expected consumption, which is the management of sales activities and business relations. Thus, the claims under the broadest reasonable interpretation, recite elements that fall into the “Mental Processes” grouping of abstract ideas, the “Mathematical Concepts” grouping of abstract ideas, and the “Certain Methods of Organizing Human Activities” grouping of abstract ideas. Therefore the claims recite an abstract idea.
This judicial exception is not integrated into a practical application. The claims do not recite additional elements that improve the functioning of a computer, another technology, or technical field. The claims do not recite the use of, or apply the abstract idea with, a particular machine, the claims do not recite the transformation of an article from one state or thing into another. Finally, the claims do not recite additional elements that apply or use the abstract idea in some other meaningful way beyond generally linking the use of the abstract idea to a particular technological environment. Instead, the claims recite the use of generic computer elements (computer, sensors, network, system) as tools to carry out the abstract idea. In addition, the claims recite receiving and transmitting data over a network, which is deemed extrasolution activity. Therefore the claims are directed to an abstract idea.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using generic computer elements and machines to perform the steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. In addition, the claims recite receiving and transmitting data (energy usage, energy bill, alerts) over a network, which is deemed well-understood, routine, and conventional activity (MPEP 2106.05(d), “Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)”). The claims are not directed to patent eligible subject matter.
The dependent claims 11-18, taken individually and in an ordered combination, do not recite additional elements that integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself. In particular, the claims further recite that power signatures are dynamic and adjustable based on types of environmental factors; which is deemed further narrowing the field of use by defining the factors of a power signature, which does not integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself (claims 11 and 12). In addition, the claims recite filtering an event when a duration of detection is less than a quantity of time, which encompasses the mental activity (observation, judgement), managing commercial interactions (i.e. not including data in commercial activity analysis), managing interactions and behavior between people (filtering content), and the performance of mathematical concepts (removing sub-data from an overall dataset if the data is not high/long enough); and the thus claims recite an abstract idea (claims 13 and 14). In addition, the claims further define the content stored in a database, such as the reasons for malfunction, which is deemed merely a narrowing of the field of use by defining the content of data stored, which does not recite additional elements that integrate the abstract idea into a practical application, or add significantly more to the abstract idea itself (claims 15-18).
Novel/Non-Obviousness
Claims 1-18 are allowed over the prior art of record. In this case, the closest prior art does not disclose, either explicitly or implicitly, the specific combination of elements of claim 1 which recite, “the software executing on the computer determining a baseline energy usage based on the first and second energy usages, the software executing on the computer applying a discount rate to the baseline energy usage to generate a discounted baseline energy usage, the discount rate based on an expected reduced energy usage for the facility; the software executing on the computer generating an energy bill for a third period of time; issuing the energy bill from a first-party to the third-party for a current billing period prior to an end of the current billing period and prior to all actual energy usage by the third party for the current billing period wherein the energy bill is an actual energy bill for the third party; wherein the first-party is obligated to pay a utility bill issued by a second-party for energy usage of the facility during the current billing period; measuring an actual energy usage of a plurality of pieces of equipment at the facility with a plurality of sensors connected to the network to generate measured energy usage.” Claim 10 recites similar subject matter and is allowable for similar reasons. Claims 2-9 and 11-18 depend upon claims 1 and 10, and therefore are also allowable via dependency.
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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
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Michael Harrington
Primary Patent Examiner
17 November 2025
Art Unit 3628
/MICHAEL P HARRINGTON/Primary Examiner, Art Unit 3628
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