Google LLC

Patent Trials and Appeals Board

Jun 16, 2021

2021002769 (P.T.A.B. Jun. 16, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
16/409,389 05/10/2019 Jian Wei Leong ZS202-19977 1984
105132 7590 06/16/2021
Middleton Reutlinger (Google LLC)
401 S. 4th Street, Suite 2600
Louisville, KY 40202
EXAMINER
SHARMA, NEERAJ
ART UNIT PAPER NUMBER
2659
NOTIFICATION DATE DELIVERY MODE
06/16/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
SHigdon@MiddletonLaw.com
USPTOmail@middletonlaw.com
USPTOmail@middreut.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________ 

Ex parte JIAN WEI LEONG
________________

Appeal 2021-002769
Application 16/409,389
Technology Center 2600
________________

Before JOHNNY A. KUMAR, STACEY G. WHITE, and
MICHAEL T. CYGAN, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–18. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Google LLC is the real party in
interest. Appeal Br. 3.
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INVENTION
The claimed invention generally relates to the functioning of an
electronic “intelligent assistant.” Spec. ¶ 1. Claim 1 is illustrative of the
invention and is reproduced below:
1. A method comprising:
receiving audio data generated by a microphone of a
current computing device;
identifying, based on the audio data, one or more
computing devices that each audibly emitted, via one or more
respective speaker components, a respective audio signal in
response to speech reception being activated at the current
computing device, wherein the respective audio signals are each
captured in the audio data; and
selecting, based on the identified one or more computing
devices and a spoken utterance determined from the audio data,
either the current computing device or a particular computing
device from the identified one or more computing devices to
perform a task or service based on the spoken utterance.
Appeal Br. 25 (Claims App.) (emphases added).

REJECTIONS
Claims 1–18 stand rejected on the grounds of Non-Statutory
Obviousness Type Double Patenting, as being unpatentable over claims 1–
19 of US Patent No. 10,332,523. Final Act. 4, 5.
Claims 1–11 and 14–18 stand rejected under 35 U.S.C. § 103 over
Meyers et al. (US 2017/0083285 A1; published Mar. 23, 2017) (“Meyers”)
and Sanders et al. (US 2017/0251340 A1; published Aug. 31, 2017)
(“Sanders”). Final Act. 6–18.
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Claim 12 stands rejected under 35 U.S.C. § 103 over Meyers, Sanders,
and Choi et al. (US 2011/0283334 A1; published Nov. 17, 2011) (“Choi”).
Final Act. 18–19.
Claim 13 stands rejected under 35 U.S.C. § 103 over Meyers, Sanders,
and High et al. (US 2018/0253201 A1; published Sep. 6, 2018) (“High”).
Final Act. 19–20.

ANALYSIS
We have only considered those arguments that Appellant actually
raised in the Briefs.2 Arguments Appellant could have made, but chose not
to make, in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).

Rejection under Non-Statutory Obviousness Type Double-Patenting
(OTDP)

Appellant advances no arguments regarding claims 1–18 as rejected
by the Examiner under the non-statutory OTDP rejection. Arguments not
made are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we pro
forma sustain the Examiner’s rejection of claims 1–18 on the ground of non-
statutory OTDP.

2 Claims 2–18 are not argued separately from claim 1 in either of
Appellant’s briefs (Appeal Br. 12–23; Reply Br. 2–14), and will not be
separately addressed.
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Rejection of Claim 1 under 35 U.S.C. § 103 over Meyers and Sanders

The Examiner’s Findings Regarding Meyers and Sanders

The Examiner finds that the combination of Meyers and Sanders
teaches all of the limitations of claim 1. Final Act. 6–8; Ans. 3–10.
Specifically, the Examiner finds Meyers teaches multiple speech interface
devices 102, each having both a microphone and a loudspeaker. Final Act.
6; Ans. 4; citing Meyers Fig. 1, ¶¶ 13–14. The Examiner maps one of the
speech interface devices to the limitation “receiving audio data generated by
a microphone of a current computing device” recited in claim 1. Final Act.
6; Ans. 4. The Examiner further finds that Meyers teaches identifying one
of the speech interface devices 102 using a speech service 112, based on
audio data containing audio signal 108 and metadata 110 emitted in response
to speech recognition being activated 106 at two or more speech interface
devices, and partially maps this to the limitation “identifying, based on the
audio data [including respective audio signals], one or more computing
devices that each . . . emitted . . . a respective audio signal in response to
speech reception being activated at the current computing device” recited in
claim 1. Final Act. 6; Ans. 3–4 (citing Meyers Fig. 1, ¶¶ 13–14, 70–72).
The Examiner further finds that Sanders teaches an equipment having
a beacon emitting device 128, which can audibly emit a sound. See Final
Act. 6–7; Ans. 4 (citing Sanders Fig. 1, ¶¶ 35, 77). The Examiner finds that
upon a user audibly uttering a desire to connect his or her personal device to
a particular piece of nearby equipment, the personal device identifies the
particular piece of equipment by increasing its detection rate for the beacon
emitted by that particular piece of equipment. Id. Meanwhile, the particular
piece of equipment either begins to emit its beacon signal, or increases the
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beacon signal emitting rate, upon the occurrence of this event. Final Act.
16; Ans. 7 (citing Sanders ¶¶ 35, 51, 57, and 67). The Examiner also finds
that the user’s personal device of Sanders selects which piece of equipment
to connect to based on a combination of the user’s audibly uttered desire for
the connection, and the received beacon signal. Final Act. 7; Ans. 7–8
(citing Sanders Fig. 1, ¶¶ 35, 48, and 77).
The Examiner then concludes that the teachings of Sanders, when
combined with the teachings of Meyers, map to the limitations:
identifying, based on the audio data, one or more computing
devices that each audibly emitted, via one or more respective
speaker components, a respective audio signal in response to
speech reception being activated at the current computing device,
wherein the respective audio signals are each captured in the
audio data
and
selecting, based on the identified one or more computing devices
and a spoken utterance determined from the audio data, either the
current computing device or a particular computing device from
the identified one or more computing devices to perform a task
or service based on the spoken utterance.

Final Act. 7–8; Ans. 4–8.

Appellant’s Contentions Regarding Meyers

Appellant first contends that the Examiner erred in relying upon
Meyers to teach the claimed “one or more computing devices that each
audibly emitted, via one or more respective speaker components, a
respective audio signal in response to speech reception being activated at the
current computing device,” as recited in claim 1. Appeal Br. 13–16; Reply
Br. 4–5. Appellant contends that Meyers instead teaches that speech
interface devices 102, in response to an audible user request received at their
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individual microphones, “produce a corresponding audio signal 108 and
associated metadata 110,” which are then “transmit[ted] . . . to the remote,
network-based speech recognition system,” which then in turn identifies
which speech interface device 102 should respond to the user request. See
Appeal Br. 13–15 (emphasis omitted); Reply Br. 5–7 (citing Meyers ¶¶ 27–
28). According to Appellant, audio signal 108 and associated metadata 110
are therefore not the claimed “audio signal[s]” that are “audibly emitted, via
one or more respective speaker components [of one or more computing
devices, which are separate from the current computing device,] . . . in
response to speech reception being activated at the current computing
device.” See Appeal Br. 13–15 (emphasis omitted); Reply Br. 4–7.
We are unpersuaded by Appellant’s arguments. One cannot show
nonobviousness “by attacking references individually” where the rejections
are based on combinations of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
In this case, the Examiner relies on Meyers to teach “identifying, based on
[audio signals included in the audio data], one or more computing devices
that each emitted a respective audio signal in response to speech reception
being activated at the current computing device.” See Final Act. 6; Ans. 4.
The Examiner further relies on the combination of Meyers and Sanders to
teach that the identifying is “based on the audio data [audibly emitted via
one or more respective speaker components of one or more computing
devices], . . . wherein the respective audio signals are each captured in the
audio data.” Final Act. 6–8; Ans. 3–10.
Appellant makes two other contentions that are unpersuasive for
similar reasons. Specifically, Appellant argues that the audio signal 108 and
associated metadata 110 are not “audio signals” that are “each captured in
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the audio data” which is “generated by a microphone of [the] current
computing device,” and used to “identify[] . . . one or more computing
devices” based on “audibly emit[ing], via one or more respective speaker
components,” as required by claim 1, since they signals are sent to the
network-based speech recognition system. See Appeal Br. 14; Reply Br. 4–
7. Appellant also argues that while speech interface devices 102 of Meyers
have a microphone and a loudspeaker, the audio signals 108 and associated
metadata 110 are not “audibly emitted, via one or more respective speaker
components” as recited in claim 1, since the loudspeakers of speech
interface devices 102 are used only to respond to voice requests by a user,
not for identification. See Appeal Br. 15–16; Reply Br. 5–6.
Each of these arguments fails because Appellant has not addressed the
full breadth of Examiner’s findings, which are based on the combined
teachings of Meyers and Sanders.
Next, Appellant contends that the Examiner has improperly conflated
the “emit[ing] . . . [an] audio signal” of claim 1 with the “transmit[ing]” of
an “audio signal,” as it is used in Meyers. See Appeal Br. 15–16; Reply Br.
6–7. Appellant points to paragraph 15 of their Specification, which states
that “[n]etwork 130 . . . [is] for transmitting data between computing
systems, servers, and computing devices,” while paragraph 36 states that
“computing devices 180 . . . emit sounds 181.” Appeal Br. 15; Reply Br. 6.
We are unpersuaded by Appellant’s reasoning. We do not see
sufficient support in the Specification for requiring the distinction that
Appellant is attempting to draw between emitting and transmitting. Further,
to the extent that the Specification could been seen as providing an example
of transmitting that may be somewhat different from emitting we are not
persuaded that it would be proper to read such language into the claims. We
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are guided that, although claim terms are interpreted in light of the
specification, we do not read limitations from the specification into the
claims. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (The claims at
issue were drawn to a “hair brush.” The court upheld the Board’s refusal to
import from the specification a limitation that would apply the term only to
hairbrushes for the scalp. “[T]his court counsels the PTO to avoid the
temptation to limit broad claim terms solely on the basis of specification
passages.”). In addition, proper claim construction requires a broadest
reasonable interpretation consistent with the specification. In re Bond, 910
F.2d 831, 833 (Fed. Cir. 1990).
In the instant case, we agree with the Examiner that “transmit[ing]” an
“audio signal,” as taught by Meyers, teaches “emit[ing] . . . [an] audio
signal,” as it is recited in independent claim 1. Moreover, Sanders teaches in
paragraph 35 that the beach-emitting mechanism “emits” a sound in its
beacon signal; accordingly, the combination of Meyers and Sanders teaches
“audibly emit[ing]” sounds.

Appellant’s Contentions Regarding the Teachings of Sanders

First, Appellant contends that Sanders fails to teach that the “one or
more computing devices . . . each audibly emit[], via one or more respective
speaker components, a respective audio signal in response to speech
reception being activated at the current computing device.” Appeal Br.
16–17; Reply Br. 8 (emphasis added by Appellant). In particular, Appellant
alleges that the beacon-emitting mechanism of Sanders, which the Examiner
maps to the claimed “one or more computing devices,” emits its beacon
signal “on a periodic basis.” Appeal Br. 16; Reply Br. 8, 10 (citing Sanders
¶ 35). Further, according to Appellant, the “mode-selecting component 120”
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of Sanders, in response to the user’s request, merely “increases the detection
rate at which” the user’s computing device “checks for a beacon signal”
from the beacon-emitting mechanism. Appeal Br. 16–17 (emphasis
omitted); Reply Br. 8, 10–11 (citing Sanders ¶¶ 57, 67, and 77).
Consequently, according to Appellant, the audio signal of Sanders is not “in
response to speech reception being activated at the current computing
device.” Appeal Br. 16; Reply Br. 8, 10–11.
We are unpersuaded by Appellant’s arguments. The Examiner finds,
and Appellant does not dispute, that the “identifying” step of Meyers occurs
“in response to speech reception being activated at the current computing
device,” as recited in claim 1. Final Act. 6; Ans. 4 (citing Meyers Fig. 1, ¶¶
13–14, 70–72). In other words, the activation of speech reception in the
computing device of Meyers is a particular, discreet event that causes the
“identifying” step to take place. Meanwhile, the Examiner finds that the
“one or more computing devices” of Sanders can begin to emit their beacon
signals on an “event-driven basis.” Final Act. 16 (citing Sanders ¶ 35).
Accordingly, one having ordinary skill in the art would have known, when
combining the teachings of Meyers and Sanders, to have the “one or more
computing devices” of Sanders begin to emit their beacon signals upon the
particular, discreet event of activating speech reception at the current
computing device.
Second, Appellant contends that Sanders fails to teach “selecting,
based on the identified one or more computing devices and a spoken
utterance determined from the audio data, either the current computing
device or a particular computing device from the identified one or more
computing devices to perform a task or service based on the spoken
utterance.” See Appeal Br. 19–20; Reply Br. 11–13. Appellant contends
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that the “selecting” which takes place in Sanders is merely based upon, at
best, “a spoken utterance determined from the audio data.” See Appeal Br.
19–20; Reply Br. 12–13. Further according to Appellant, because Sanders
fails to teach that the “one or more computing devices . . . each audibly
emit[], via one or more respective speaker components, a respective audio
signal in response to speech reception being activated at the current
computing device,” (see above), Sanders does not teach “identifying . . .
one or more computing devices,” and therefore, cannot also teach “selecting,
based on the identified one or more computing devices . . .” See Appeal Br.
16–17, 19–20; Reply Br. 12.
We are unpersuaded by Appellant’s arguments. Appellant is attacking
Sanders individually, while ignoring the combined teachings of Meyers and
Sanders. As described above, the Examiner relies on Meyers to teach
“identifying, based on [audio signals included in the audio data], one or
more computing devices that each emitted a respective audio signal in
response to speech reception being activated at the current computing
device.” See Final Act. 6; Ans. 4. The Examiner further relies on the
combination of Meyers and Sanders to teach that the identifying is “based on
the audio data [audibly emitted via one or more respective speaker
components of one or more computing devices], . . . wherein the respective
audio signals are each captured in the audio data,” and then “selecting, based
on the identified one or more computing devices and a spoken utterance
determined from the audio data, either the current computing device or a
particular computing device from the identified one or more computing
devices to perform a task or service based on the spoken utterance.” Final
Act. 6–8; Ans. 3–10.

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Appellant’s Contentions Regarding the Combined Teachings of Meyers and
Sanders

Appellant contends that because each of Meyers and Sanders each
individually fail to teach or suggest the various limitations of claim 1, it
“logically follows” that the combination of Meyers and Sanders also fails to
teach the limitations. Appeal Br. 17–18; Reply Br. 9.
Appellant’s arguments are not persuasive because they do not take
into account what the collective teachings of the prior art would have
suggested to one of ordinary skill in the art and are therefore ineffective to
rebut the Examiner’s prima facie case of obviousness. See In re Keller,
642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed invention must
be expressly suggested in any one or all of the references. Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.” (Citations omitted)). This reasoning is
applicable here.
We further note that the Examiner has found:
It would thus have been obvious to one having ordinary skill in the art
to advantageously combine the teachings of Sanders (Use of an audio
output for device recognition) with those of Meyers (Use of metadata
in selecting a device in a multi-device voice interactive environment)
so as to reduce consumption of power by a computing device which
performs the detection activity (Sanders, para 3).

Final Act. 7, 8.
The above-noted teachings suggest that the combination involves the
predictable use of prior art elements according to their established functions.
The Supreme Court has held that in analyzing the obviousness of combining
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elements, a court need not find specific teachings, but rather may consider
“the background knowledge possessed by a person having ordinary skill in
the art” and “the inferences and creative steps that a person of ordinary skill
in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). To be nonobvious, an improvement must be “more than the
predictable use of prior art elements according to their established
functions,” id. at 417, and the basis for an obviousness rejection must
include an “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” Id. at 418 (citation omitted). Here, the
Examiner has provided a rationale for the combination. Accordingly, we
find that the Examiner has provided sufficient motivation for modifying
Myers with the teachings of Sanders.

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Rejection of Claim 12 under 35 U.S.C. § 103 over Meyers, Sanders, and
Choi

Appellant advances no separate arguments for dependent claim 12
that was rejected by the Examiner. Arguments not made are forfeited or
waived.3 See 37 C.F.R. § 41.37(c)(1)(iv).

Rejection of Claim 13 under 35 U.S.C. § 103 over Meyers, Sanders, and
High

Appellant advances no separate arguments for dependent claim 13
that was rejected by the Examiner. Arguments not made are forfeited or
waived. See 37 C.F.R. § 41.37(c)(1)(iv).

3 See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020)
(some internal citations omitted):
It is well established that “[w]aiver is different from forfeiture.”
United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a
known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)) (additional citations omitted). The two scenarios
can have different consequences for challenges raised on
appeal, id. at 733–34, and for that reason, it is worth attending
to which label is the right one in a particular case.

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DECISION
In summary:

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–18 Nonstatutory
Double Patenting
10,332,523
1–18
1–11, 14–18 103 Meyers, Sanders 1–11, 14–
18

12 103 Meyers, Sanders,
Choi
12
13 103 Meyers, Sanders,
High
13
Overall
Outcome
1–18