Appeal No. 2004-1981 Page 7
Application No. 09/404,692
for a particular room. These bids do not represent the market
price, but rather are used by the central controller in the
auction process to determine the market price. Therefore, we
find that Clearwater fails to teach the marketwire element as
recited in claim 1.
We find that Clearwater also does not teach the second
element at issue, a producing unit that is itself responsive to a
market price signal. Clearwater discloses how the central
controller calculates the auction price based on the buy and sell
bids, and from this disclosure, we do not agree with the examiner
(answer, page 14) that "[t]he controller of Clearwater merely
aggregates the signals from the multiple thermostats and provides
this aggregate signal to the producing unit.” In Clearwater, the
resource supplier adjusts its output in response to a signal from
the central controller. This signal is not “representative of
the market price,” as recited in claim 1. We therefore agree
with appellants (brief, page 6) that “there is no suggestion from
Clearwater of the producing units having the ability to interpret
a market price.”
From all of the above, we find that the examiner has failed
to establish a prima facie case of anticipation of claim 1.
Accordingly, the rejection of claim 1, and dependent claims 2-4,
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