May Patents Ltd.

Patent Trials and Appeals Board

Sep 27, 2021

2020004094 (P.T.A.B. Sep. 27, 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.
15/832,787 12/06/2017 Yehuda BINDER BINDER-014-US5 7397
131926 7590 09/27/2021
May Patents Ltd. c/o Dorit Shem-Tov
P.O.B 7230
Ramat-Gan, 5217102
ISRAEL
EXAMINER
KHAN, HASSAN ABDUR-RAHMAN
ART UNIT PAPER NUMBER
2456
MAIL DATE DELIVERY MODE
09/27/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YEHUDA BINDER and BENJAMIN MAYTAL
____________

Appeal 2020-004094
Application 15/832,787
Technology Center 2400
____________

Before JOHN A. JEFFERY, JUSTIN BUSCH, and
ADAM J. PYONIN, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–36. 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. Appellant identifies the real party in interest as May
Patents Ltd. Appeal Br. 2.
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STATEMENT OF THE CASE

Appellant’s invention is a voice control system used in connection
with a wireless network in a building, where the system uses a server
implementing gateway or control functionalities. See Abstract; Spec. 1,
39–40, 90, 178–80, 201–02; Figs. 15a, 19. Controller functionality can be
integrated in a server external to the building. See Spec. 162–63;
Figs. 15–15a. Claim 1 is illustrative:
1. A system for use with a wireless network in a
building, the system comprising first and second devices in the
building and an Internet-connected server device external to the
building, the first device comprising in a first single enclosure:

a first wireless transceiver for communicating with the
server device over the wireless network; and

multiple microphones for capturing human voice data,
the multiple microphones are coupled to the first wireless
transceiver for sending the captured human voice data to the
server device,

and the second device comprising in a second single
enclosure:

a second wireless transceiver for communicating with the
server device over the wireless network for receiving an
actuator command therefrom; and

an actuator coupled to the second wireless transceiver for
being activated, operated, or controlled in response to the
received actuator command,

wherein the server device is operative to receive over the
Internet the captured human voice data from the first device, to
process the captured human voice data using a voice
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processing, and to send the actuator command in response to
the processing.

RELATED APPEALS
On page 2 of the Appeal Brief,2 Appellant informs us of four related
appeals in the following applications: (1) 13/733,634; (2) 15/657,1633; (3)
15/361,434; and (4) 15/716,881. These appeals were decided by another
panel of this Board. See Ex parte Binder, Appeal 2018-007694 (PTAB
Mar. 2, 2020), reh’g denied (PTAB May 18, 2020); Ex parte Binder, Appeal
2019-002056 (PTAB May 4, 2020); Ex parte Binder, Appeal 2019-000272
(PTAB June 10, 2020); Ex parte Binder, Appeal 2019-002059 (PTAB June
30, 2020). Notably, in the ’2056 and ’7694 appeals, among other things, the
Board affirmed the Examiner’s obviousness rejections that cited one of the
references at issue here, namely Beliles.
Although not indicated in the Appeal Brief or the Reply Brief, this
appeal is also related to two other appeals in copending applications
15/992,219 and 15/992,221, the latter decided by another panel of this
Board. See Ex parte Binder, Appeal 2020-002710 (PTAB July 22, 2021).
In that appeal, among other things, the Board affirmed the Examiner’s

2 Throughout this opinion, we refer to (1) the Final Rejection mailed January
2, 2020 (“Final Act.”); (2) the Appeal Brief filed January 31, 2020 (“Appeal
Br.”); (3) the Examiner’s Answer mailed April 28, 2020 (“Ans.”); and
(4) the Reply Brief filed May 12, 2020 (“Reply Br.”).
3 Although Appellant incorrectly identifies this Application Number as
16/657,163 (Appeal Br. 2), we nonetheless present the correct Application
Number 15/657,163 here for clarity and treat Appellant’s error in this regard
as harmless.
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obviousness rejection that cited one of the references at issue here, namely
Kiko.

THE REJECTIONS
The Examiner rejected claims 1–11, 14, 19–30, and 364 under
35 U.S.C. § 103 as unpatentable over Asofsky (US 2009/0271002 A1;
published Oct. 29, 2009) and DeVaul (US 2015/0138333 A1; published May
21, 2015).5 Final Act. 3–13, 19–20.
The Examiner rejected claims 12 and 13 under 35 U.S.C. § 103 as
unpatentable over Asofsky, DeVaul, and Beliles (US 2007/0283005 A1;
published Dec. 6, 2007). Final Act. 13–15.
The Examiner rejected claims 15–18 and 31–35 under 35 U.S.C.
§ 103 as unpatentable over Asofsky, DeVaul, and Kiko (US 2005/0125083
A1; published June 9, 2005). Final Act. 15–19

THE OBVIOUSNESS REJECTION OVER ASOFSKY AND DEVAUL
Regarding independent claim 1, the Examiner finds that Asofsky
discloses a system for use with a wireless network in a building, where the

4 Although the Examiner omits claim 36 from the statement of the rejection,
the Examiner nonetheless clarifies that claim 36 is rejected over Asofsky and
DeVaul—not Asofsky, DeVaul, and Kiko. See Ans. 29–30. We, therefore,
include claim 36 here to clarify the record, and treat the Examiner’s error in
this regard as harmless.
5 Although DeVaul’s filing date of February 28, 2012, is after Appellant’s
parent application’s earliest provisional application filing date of January 9,
2012, for provisional application 61/584,500, there is no dispute that DeVaul
qualifies as prior art to the present application. Accord Ans. 3–4, 9 (finding
that the ’500 provisional application does not support the claimed subject
matter related to multiple microphones).
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system includes first and second devices in the building, and an internet-
connected server device external to the building, where the first and second
devices have respective wireless transceivers for communicating with the
server device, where the second device’s transceiver is for receiving an
actuator command from the server device over the network. Final Act. 3–5.
The Examiner also find that Asofsky discloses an actuator coupled to the
second wireless transceiver for being activated, operated, or controlled
responsive to the received actuator command. Final Act. 5.
Although the Examiner acknowledges that Asofsky lacks multiple
microphones coupled to the first wireless transceiver for sending captured
human voice data to the server device that can (1) receive and process the
captured human voice data, and (2) send the actuator command responsive
to the processing, the Examiner cites DeVaul as teaching these features in
concluding that the claim would have been obvious. Final Act. 5–6.
Appellant argues that Asofsky and DeVaul were combined improperly
because not only are they are in different fields and not analogous to each
other, Asofsky is in a different field than that of the claimed invention and,
therefore, is non-analogous to the claimed invention. Appeal Br. 4–8; Reply
Br. 2–4. Appellant adds that not only was the Examiner’s rationale for
combining Asofsky and DeVaul improper with respect to the recited
microphones and server operation, the Examiner’s proposed combination
appears to pick and choose various disclosures from the cited references
impermissibly in arriving at the claimed invention. Appeal Br. 12–13; Reply
Br. 5–12. Appellant also argues various recited limitations summarized
below.

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ISSUES
I. Under § 103, has the Examiner erred by finding that Asofsky and
DeVaul collectively would have taught or suggested:
(1) the system recited in claim 1?
(2) the first and second single enclosures are the same as recited in
claim 2?
(3) the voice processing comprises performing a voice recognition
algorithm for identifying a specific person’s voice as recited in claim 3?
(4) the first device further comprises a sensor coupled to the first
wireless transceiver that outputs sensor data that responds to a physical
phenomenon, the first device being further operative to send to the server
device via the wireless network the sensor data, where the actuator
command is further responsive to the sensor data as recited in claim 4?
(5) a thermoelectric sensor that responds to a temperature or a
temperature gradient of an object using conduction, convection, or radiation
as recited in claim 5?
(6) the sensor comprises a photoelectric sensor that responds to a
visible or an invisible light, the invisible light is infrared, ultraviolet, X-rays,
or gamma rays, where the photoelectric sensor is based on the photoelectric
or photovoltaic effect, and consists of, or comprises, a semiconductor
component that consists of, or comprises, a photodiode, a phototransistor, or
a solar cell, or where the photoelectric sensor is based on Charge-Coupled
Device (CCD) or a Complementary Metal-Oxide Semiconductor (CMOS)
elementas recited in claim 6?
(7) the wireless network is a Wireless Personal Area Network
(WPAN) that is according to, or based on, BluetoothTM or Institute of
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Electrical and Electronics Engineers (IEEE) 802.15.1–2005 standards as
recited in claim 14?
(8) the first device or the second device is integrated in, is part of,6 or
is entirely included in, an appliance that is activated or controlled responsive
to the actuator command as recited in claim 19?
(9) the appliance’s primary functionality is associated with food
storage, handling, or preparation as recited in claim 20?
(10) the appliance’s primary function is associated with environmental
control, and the appliance consists of, or is part of, a Heating, Ventilation
and Air Conditioning (HVAC) system as recited in claim 23?
(11) the appliance’s primary function is associated with cleaning,
where the appliance primary function is associated with clothes cleaning and
the appliance is a washing machine or a clothes dryer, or wherein the
appliance is a vacuum cleaner as recited in claim 25?
(12) the actuator is an electric light source that emits, responsive to
the actuator command, non-visible light for illumination or indication, where
the non-visible light is infrared, ultraviolet, x-rays, or gamma rays as recited
in claim 29?
(13) the first device further comprises an additional actuator coupled
to the first wireless transceiver for being activated, operated, or controlled
responsive to receiving an additional actuator command, where the server

6 Although claim 19 recites, in pertinent part, the first device “is part or” an
appliance (emphasis added), we presume this instance of the term “or” was
intended to be “of” for proper grammatical form, and treat Appellant’s error
in this regard as harmless.
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device is operative to send the additional actuator command responsive to
the voice processing as recited in claim 36?
II. Is the Examiner’s proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion? This issue turns on whether
Asofsky and DeVaul are analogous art to the claimed invention, and whether
the Examiner’s articulated reason to combine these references has rational
underpinning.

ANALYSIS
Claims 1, 7–11, 27, 28, and 30
We begin by noting that the Examiner’s findings regarding Asofsky
and DeVaul for teaching or suggesting the respective limitations for which
these references were cited (Final Act. 3–6) is undisputed. Rather, as noted
above, the dispute regarding representative claim 1 turns solely on the cited
references’ combinability. Accordingly, we confine our discussion to that
issue.
In the rejection, the Examiner finds that Asofsky’s Figure 1 discloses
a system for use with a wireless network in a building, where the system
includes a “first device,” namely automated devices 12, and a “second
device,” namely computer 16, where each device has a wireless transceiver
that communicates wirelessly with a “server device,” namely server 20. See
Final Act. 4–5. The Examiner also finds that Asofsky’s “first device”
includes an “actuator,” namely an integrated electronic automation device,
that is (1) coupled to the “second wireless transceiver,” namely that
associated with the “second device” (computer 16), and (2) configured to
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operate responsive to received voice instructions or commands using an
interactive voice response (IVR) system 26. See Final Act. 5 (citing
Asofsky ¶¶ 39, 48).
Given Asofsky’s voice-based remote control functionality, we see no
error in the Examiner’s reliance on DeVaul for at least suggesting the recited
microphones and voice processing functionality in concluding that the
claimed invention would have been obvious over Asofsky’s and DeVaul’s
collective teachings. As DeVaul’s Abstract explains, an “anthropomorphic”
device, such as a doll or toy, can control one or more “media devices”
which, according to DeVaul’s paragraph 19, can be any type of controllable
device. To this end, microphones can be located at or near the
anthropomorphic device’s ears, and the device can (1) receive a user’s voice
command; and (2) transmit a representation of that command to a server.
DeVaul ¶¶ 71, 83; Fig. 4 (steps 412 and 414). Upon receipt, the server then
(1) processes and interprets that command by, for example, recognizing the
user’s speech; and (2) transmits this interpretation back to the
anthropomorphic device that then sends an associated command to the
media device. DeVaul ¶¶ 71, 84–85; Fig. 4 (steps 416 and 418). Notably,
the server is faster and more accurate than the anthropomorphic device in
interpreting the voice command due to the server’s significantly greater
processing power and storage. See DeVaul ¶ 84.
Given these teachings, we see no error in the Examiner’s conclusion
that coupling multiple microphones for capturing human voice data, such as
those in DeVaul, to Asofsky’s “first wireless transceiver,” namely that
associated with automated devices 12, would have been at least an obvious
variation to (1) send captured voice data corresponding to a spoken control
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command to server 20 for interpretation, and (2) control the associated
device via an actuator consistent with that interpretation. Such an
enhancement uses prior art elements predictably according to their
established functions—an obvious improvement. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007).
Appellant’s contention that Asofsky and DeVaul were ostensibly
combined improperly because they are in different fields and not analogous
to one another (Appeal Br. 4–6) is unavailing. Prior art is analogous if it is
(1) from the same field of endeavor as the invention, regardless of the
problem addressed, or (2) reasonably pertinent to the particular problem with
which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004). The analogous art test, then, does not ask whether prior art
references are analogous to each other as Appellant seems to suggest (see
Appeal Br. 4–6), but rather asks whether the references are analogous to the
claimed subject matter. See id.; see also In re Kahn, 441 F.3d 977, 986–87
(Fed. Cir. 2006). Because Asofsky and DeVaul both remotely monitor and
control electrical devices, including those in buildings, as the Examiner
indicates (Ans. 5–6), the references are not only in the same field of
endeavor as Appellant’s invention, namely remotely controlling devices, but
they are also reasonably pertinent to Appellant’s problem in that regard, at
least with respect to remotely controlling devices via voice commands.
We reach this conclusion despite Asofsky’s and DeVaul’s different
patent classifications as Appellant indicates. See Appeal Br. 6. Although
these diverse classifications can constitute some evidence of “non-analogy,”
this evidence is far outweighed by the references’ structural and functional
similarities that render them analogous art. See In re Ellis, 476 F.2d 1370,
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1372 (CCPA 1973) (noting that, although (1) diverse patent office
classification of prior art references is some evidence of “non-analogy,” and
(2) cross-references in official search notes is some evidence of “analogy,”
the similarities and differences in structure and function of the references’
disclosed inventions carry far greater weight).
Nor do we find that Asofsky teaches away from the claimed invention
despite Appellant’s arguments to the contrary. See Appeal Br. 6–8. Even
assuming, without deciding, that Asofsky’s IVR system that receives voice
commands is located external to the building containing automated devices
12 as Appellant seemingly suggests, nothing on this record indicates that
Asofsky criticizes, discredits, or otherwise discourages investigation into the
invention claimed, including controlling the devices in a building, as
required for teaching away. See Norgren Inc. v. Int’l Trade Comm’n, 699
F.3d 1317, 1326 (Fed. Cir. 2012); see also In re Kahn, 441 F.3d at 990.
Appellant’s reliance on a non-precedential Board decision, namely Ex
parte Hillis, Appeal 2017-007947 (PTAB Mar. 27, 2018) that, according to
Appellant, is similar to the present case because the Board reversed a
rejection under 35 U.S.C. § 112 “since the Examiner changed his opinion
from a former similar application” (Appeal Br. 8), is unavailing. Not only
do the facts in that case differ from those at issue here, as a non-precedential
decision, it is not binding on this panel in any event. See PTAB Standard
Operating Procedure 2 (Rev. 10) (“SOP 2”) § I(B), https://www.uspto.gov/
sites/default/files/documents/SOP2%20R10%20FINAL.pdf.
We also find the Examiner’s proposal to provide multiple
microphones as taught by DeVaul in connection with Asofsky’s “first
device,” namely automated devices 12 (Final Act. 6; Ans. 8–11), has rational
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underpinning on this record. Notably, Asofsky’s automated devices include,
quite broadly, any suitable home appliance including those with
microphones, such as personal computers and answering machines. See
Asofsky ¶ 39. Moreover, DeVaul’s “anthropomorphic” device includes
microphones that receive voice commands to not only control that device,
namely by aiming the “anthropomorphic” device’s gaze at the source of the
voice-based “social cue,” but also control other devices responsive to
received voice commands, namely “media devices” which, according to
DeVaul’s paragraph 19, can be any type of controllable device—including
those in the same room. See DeVaul Abstract; ¶¶ 19, 71, 83–85, 102; Fig. 4.
Given DeVaul’s teaching of controlling devices in the same room as
the “anthropomorphic” device—including the “anthropomorphic” device
itself—responsive to voice commands detected by multiple microphones on
or in that device, providing microphones to capture a user’s voice command
in connection with Asofsky’s automated devices 12 to control those devices
responsive to detected voice commands as the Examiner proposes has a
rational underpinning on this record. We reach this conclusion noting that
Asofsky’s automated devices include, quite broadly, any suitable home
appliance including those with microphones, such as personal computers and
answering machines. See Asofsky ¶ 39. Appellant’s arguments regarding
the cited references’ individual shortcomings in this regard (Appeal Br. 8–
10; Reply Br. 5–8) do not show nonobviousness where, as here, the rejection
is based on the cited references’ collective teachings. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Nor has Appellant shown that providing multiple microphones in
connection with Asofsky’s automated devices to receive voice commands to
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control those devices would have been uniquely challenging or otherwise
beyond the level of ordinarily skilled artisans. As such, applying DeVaul’s
techniques to Asofsky as the Examiner proposes would have been obvious.
See KSR, 550 U.S. at 417 (noting that if a technique has been used to
improve one device, and an ordinarily skilled artisan would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill); see also
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007).
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 6. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar Textilfarben GmbH & Co.
Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361 (Fed. Cir. 2006).
Therefore, to the extent Appellant contends that Asofsky must articulate or
otherwise disclose the basis for the Examiner’s proposed modification, we
disagree.
Nor do we find error in the Examiner’s proposal to send the captured
voice commands to a server, such as Asofsky’s server 20, to process and
interpret the commands despite Appellant’s arguments to the contrary
(Appeal Br. 10–12; Reply Br. 8–12). See Final Act. 6; Ans. 13–14. As
DeVaul’s paragraph 84 explains, a server is faster and more accurate than
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the anthropomorphic device in interpreting a voice command given the
server’s significantly greater processing power and storage. Therefore,
sending the captured voice commands to a server to process and interpret the
commands under the Examiner’s proposed combination would have been at
least an obvious variation to use the server’s additional processing power,
speed, and accuracy to process and interpret the captured commands instead
of doing so at the lower-powered and slower controlled device. Such an
enhancement uses prior art elements predictably according to their
established functions—an obvious improvement. See KSR, 550 U.S. at 417.
Appellant’s contention that the Examiner’s proposed combination
“appears to impermissibly pick and choose only so much of it as will support
the Examiner’s position” (Appeal Br. 13) is unavailing. Leaving aside the
fact that the authority Appellant cites to support this argument, namely In re
Arkley, 455 F.2d 586 (CCPA 1972), pertains to anticipation—not
obviousness—we do not find the Examiner’s proposed combination is the
result of impermissible hindsight that merely uses the claimed invention as
an instruction manual or “template” to piece together the teachings of the
prior art in arriving at an obviousness conclusion. See In re Fritch, 972 F.2d
1260, 1266 (Fed. Cir. 1992). Rather, the Examiner’s proposed combination
uses prior art elements predictably according to their established functions—
an obvious improvement. See KSR, 550 U.S. at 417.
To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 7–8), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
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petitionable matter that is not before us, as are objections regarding
procedural inconsistencies associated with that requirement. See Manual of
Patent Examining Procedure (MPEP) § 706.01 (9th ed. rev. 10.2019 June
2020) (“[T]he Board will not hear or decide issues pertaining to objections
and formal matters which are not properly before the Board.”); see also
MPEP § 1201 (“The Board will not ordinarily hear a question that should be
decided by the Director on petition . . . .”); MPEP § 1002.02(c) (requiring
that Technology Center Directors decide petitions from an Examiner’s final
decision requiring restriction in patent applications). Therefore, to the extent
there are inconsistencies between the Examiner’s restriction requirement and
obviousness rejection, the Examiner’s restriction requirement is not before
us, nor are we bound by it. Rather, only the Examiner’s obviousness
rejection is before us—a rejection that is (1) articulated in the Final Office
Action from which this appeal was taken, and (2) based on the cited prior
art.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 3, 6, 11. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
4–14.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 3, 6, 11), that is a petitionable matter that is not
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before us. See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where,
as here, Appellant did not file such a petition, Appellant’s contentions
regarding any alleged new ground of rejection in the Answer are waived.
See 37 C.F.R. § 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 3, 6, 11) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 7–11, 27, 28, and 30 not argued separately with
particularity.

Claim 2
We also sustain the Examiner’s rejection of claim 2 reciting that the
first and second single enclosures are the same. See Final Act. 6; Ans. 15.
Notably, the claim does not specify in what respect the single enclosures are
the same, but rather merely recites, quite broadly, that they are the same with
no further qualification—a breadth that does not preclude enclosures that are
the same in any respect, such as type, structural features, appearance, or
function.
Given this scope and breadth, we see no error in the Examiner’s
rejection at least to the extent that the enclosures for the first and second
devices under the Examiner’s mapping, namely Asofsky’s automated
devices 12 and computer 16, respectively, are the same in at least some
respect, such as type, structural features, appearance, or function, or that this
sameness would have been at least an obvious variation. That Asofsky’s
automated devices 12 include computers in paragraph 39 whose depiction is
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strikingly similar to that of computer 16 in Figure 1 only further bolsters the
notion that providing the same types of enclosures for the same types of
devices, namely computers, would have been at least an obvious variation.
Appellant’s arguments to the contrary (Appeal Br. 13–14; Reply Br. 12) are
unavailing and not commensurate with the scope of the claim.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 2.

Claim 3
We also sustain the Examiner’s rejection of claim 3 reciting the voice
processing comprises performing a voice recognition algorithm for
identifying a specific person’s voice. Despite Appellant’s arguments to the
contrary (Appeal Br. 14–15; Reply Br. 13–14), we see no error in the
Examiner’s reliance on the cited prior art for at least suggesting the recited
limitations for the reasons noted above and by the Examiner. Final Act. 6–7;
Ans. 15–16 (citing DeVaul ¶¶ 83–88, 99). Notably, DeVaul’s
“anthropomorphic” device can determine whether voice commands are from
the same user by analyzing and comparing the command to authorized users’
profiles in paragraph 99. Not only does this determination identify a specific
person’s voice, namely that of a particular authorized user, but DeVaul at
least suggests that this determination need not be made by the
“anthropomorphic” device, but rather could be made by server 406 given its
greater processing power and storage. See DeVaul ¶¶ 83–84, 99–100.
Providing such voice recognition capabilities in connection with the
voice-based Asofsky/DeVaul control system as the Examiner proposes uses
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prior art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 14. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 14. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
15–16.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 14), that is a petitionable matter that is not before us.
See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
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alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 14) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 3.

Claim 4
We also sustain the Examiner’s rejection of claim 4 reciting the first
device further comprises a sensor coupled to the first wireless transceiver
that outputs sensor data that responds to a physical phenomenon, the first
device being further operative to send to the server device via the wireless
network the sensor data, where the actuator command is further responsive
to the sensor data.
Despite Appellant’s arguments to the contrary (Appeal Br. 15–16;
Reply Br. 15–17), we see no error in the Examiner’s reliance on Asofsky
and DeVaul for collectively at least suggesting the recited limitations for the
reasons noted above and by the Examiner. Final Act. 7; Ans. 16–17 (citing
Asofsky ¶¶ 39, 44; DeVaul ¶¶ 83–88).
First, as Appellant acknowledges (Appeal Br. 15), Asofsky’s
paragraph 39 notes that automated devices 12 include various sensors.
These sensors, which include flood, door, window, temperature, or motion
sensors, effectively output sensor data responsive to physical phenomena,
namely water level, door or window position, temperature, or motion. See
Asofsky ¶ 39. Sending this data to the server via a wireless network to
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produce an actuator command as claimed would have been at least an
obvious variation in light of Asofsky and DeVaul to control the automated
devices responsive to a sensed condition, such as water level, door or
window position, temperature, or motion. Such an enhancement uses prior
art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 16. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 15–16. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
16–17.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
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Answer (see Reply Br. 15–16), that is a petitionable matter that is not before
us. See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 15–16) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 4.

Claim 5
We also sustain the Examiner’s rejection of claim 5 reciting a
thermoelectric sensor that responds to a temperature or a temperature
gradient of an object using conduction, convection, or radiation. Despite
Appellant’s arguments to the contrary (Appeal Br. 16; Reply Br. 17–19), we
see no error in the Examiner’s reliance on the cited prior art for at least
suggesting the recited limitations for the reasons noted above and by the
Examiner. Final Act. 7; Ans. 17–18 (citing Asofsky ¶ 39).
Appellant’s contention—that the Examiner’s reliance on Asofsky to
reject claim 5 is allegedly improper because of the claim’s dependence from
claim 4 that was rejected based on DeVaul (Reply Br. 17)—is unavailing.
As noted above and by the Examiner, the Examiner relies on, among other
things, Asofsky’s paragraph 39 in connection with the rejection of claims 4
and 5. See Final Act. 7. In short, Appellant’s contention ignores the basis
for the Examiner’s rejection in this regard. Accord Ans. 18 (emphasizing
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the Examiner’s reliance on Asofsky in the rejection). On this record, the
Examiner’s proposed enhancement to the Asofsky/DeVaul combination uses
prior art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 18. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 19), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
petitionable matter that is not before us, as are objections regarding
procedural inconsistencies associated with that requirement. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”); MPEP § 1002.02(c)
(requiring that Technology Center Directors decide petitions from an
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Examiner’s final decision requiring restriction in patent applications).
Therefore, to the extent there are inconsistencies between the Examiner’s
restriction requirement and obviousness rejection, the Examiner’s restriction
requirement is not before us, nor are we bound by it. Rather, only the
Examiner’s obviousness rejection is before us—a rejection that is
(1) articulated in the Final Office Action from which this appeal was taken,
and (2) based on the cited prior art.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 18. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
17–18.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 18), that is a petitionable matter that is not before us.
See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 18) are unpersuasive.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 5.

Claim 6
We also sustain the Examiner’s rejection of claim 6 reciting the sensor
comprises a photoelectric sensor that responds to a visible or an invisible
light, the invisible light is infrared, ultraviolet, X-rays, or gamma rays,
where the photoelectric sensor is based on the photoelectric or photovoltaic
effect, and consists of, or comprises, a semiconductor component that
consists of, or comprises, a photodiode, a phototransistor, or a solar cell, or
where the photoelectric sensor is based on Charge-Coupled Device (CCD)
or a Complementary Metal-Oxide Semiconductor (CMOS) element.
Despite Appellant’s arguments to the contrary (Appeal Br. 16–17;
Reply Br. 19–21), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations for the reasons noted
above and by the Examiner. Final Act. 7–8; Ans. 18 (citing DeVaul ¶ 88).
Notably, Appellant does not squarely address—let alone persuasively
rebut—the Examiner’s reliance on DeVaul’s video camera sensor in light of
the teachings in paragraph 88, but rather disputes the Examiner’s rationale to
combine the references as proposed. See Appeal Br. 16–17; Reply Br. 19–
21. Given these undisputed findings, we see no error in the Examiner’s
rejection at least to the extent that providing a photoelectric sensor with the
recited characteristics would have been at least an obvious variation given
DeVaul’s camera-based data in paragraph 88. Such an enhancement uses
prior art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
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We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 20. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 21), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
petitionable matter that is not before us, as are objections regarding
procedural inconsistencies associated with that requirement. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”); MPEP § 1002.02(c)
(requiring that Technology Center Directors decide petitions from an
Examiner’s final decision requiring restriction in patent applications).
Therefore, to the extent there are inconsistencies between the Examiner’s
restriction requirement and obviousness rejection, the Examiner’s restriction
requirement is not before us, nor are we bound by it. Rather, only the
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Examiner’s obviousness rejection is before us—a rejection that is
(1) articulated in the Final Office Action from which this appeal was taken,
and (2) based on the cited prior art.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 20–21. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
18.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 20–21), that is a petitionable matter that is not before
us. See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 20–21) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 6.

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Claim 14
We also sustain the Examiner’s rejection of claim 14 reciting the
wireless network is a Wireless Personal Area Network (WPAN) that is
according to, or based on, BluetoothTM or Institute of Electrical and
Electronics Engineers (IEEE) 802.15.1–2005 standards.
Despite Appellant’s arguments to the contrary (Appeal Br. 17–18;
Reply Br. 21–24), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations for the reasons noted
above and by the Examiner. Final Act. 9–10; Ans. 18–19 (citing DeVaul
¶ 41).
Notably, Appellant does not dispute the Examiner’s reliance on
DeVaul for at least suggesting the recited WPAN in paragraph 41, but rather
disputes the Examiner’s rationale to combine the references as proposed.
See Appeal Br. 17–18; Reply Br. 21–24. Given the undisputed findings, we
see no error in the Examiner’s rejection at least to the extent that providing
the recited WPAN would have been at least an obvious variation given
DeVaul’s teachings and suggestions in paragraph 41. Such an enhancement
uses prior art elements predictably according to their established functions—
an obvious improvement. See KSR, 550 U.S. at 417.
Appellant’s contention that Asofsky allegedly teaches away from
modifying automated appliances 12 to control other devices (Appeal Br. 17)
is unavailing. We reach this conclusion emphasizing that Asofsky’s
automated devices include, quite broadly, any suitable home appliance
including those with microphones and control capabilities, such as personal
computers. See Asofsky ¶ 39. Given this teaching, along with DeVaul’s
teaching of controlling devices in the same room as the “anthropomorphic”
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device—including the “anthropomorphic” device itself—responsive to voice
commands detected by multiple microphones on or in that device (see
DeVaul Abstract; ¶¶ 19, 71, 83–85, 102; Fig. 4), capturing and sending
voice data from the automated devices via the recited wireless PAN as the
Examiner proposes has a rational underpinning on this record. In short,
nothing on this record indicates that Asofsky criticizes, discredits, or
otherwise discourages investigation into the invention claimed, including
modifying Asofsky to, among other things, include the recited wireless
PAN, as required for teaching away. See Norgren, 699 F.3d at 1326; see
also Kahn, 441 F.3d at 990.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 25. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 23–24), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
petitionable matter that is not before us, as are objections regarding
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procedural inconsistencies associated with that requirement. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”); MPEP § 1002.02(c)
(requiring that Technology Center Directors decide petitions from an
Examiner’s final decision requiring restriction in patent applications).
Therefore, to the extent there are inconsistencies between the Examiner’s
restriction requirement and obviousness rejection, the Examiner’s restriction
requirement is not before us, nor are we bound by it. Rather, only the
Examiner’s obviousness rejection is before us—a rejection that is
(1) articulated in the Final Office Action from which this appeal was taken,
and (2) based on the cited prior art.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 23. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
18–19.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 23), that is a petitionable matter that is not before us.
See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
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alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 23) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 14.

Claims 19 and 26
We also sustain the Examiner’s rejection of claim 19 reciting the first
device or the second device is integrated in, is part of,7 or is entirely
included in, an appliance that is activated or controlled responsive to the
actuator command.
Despite Appellant’s arguments to the contrary (Appeal Br. 18–19;
Reply Br. 24–27), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations for the reasons noted
above and by the Examiner. Final Act. 10; Ans. 19–20 (citing DeVaul ¶ 33).
Notably, Appellant does not dispute the Examiner’s reliance on
DeVaul for at least suggesting the appliance at least partially includes the
first or second device in paragraph 33, but rather disputes the Examiner’s
rationale to combine the references as proposed. See Appeal Br. 18–19;
Reply Br. 24–27. Given the undisputed findings, we see no error in the

7 Although claim 19 recites, in pertinent part, the first device “is part or” an
appliance (emphasis added), we presume this instance of the term “or” was
intended to be “of” for proper grammatical form, and treat Appellant’s error
in this regard as harmless.
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Examiner’s rejection at least to the extent that providing the recited
appliance that at least partially includes the first or second device would
have been at least an obvious variation given DeVaul’s teachings and
suggestions in paragraph 33 considered in light of Asofsky. Such an
enhancement uses prior art elements predictably according to their
established functions—an obvious improvement. See KSR, 550 U.S. at 417.
Appellant’s contention that Asofsky allegedly teaches away from
modifying automated appliances 12 to media devices (Appeal Br. 18) is
unavailing. We reach this conclusion emphasizing that Asofsky’s automated
devices include, quite broadly, any suitable home appliance including those
with microphones and control capabilities, such as personal computers. See
Asofsky ¶ 39. That DeVaul’s paragraphs 19 and 33 note, quite broadly, that
“media devices” can be any type of controllable device, including
computers—one of the very types of automated devices in Asofsky’s
paragraph 39—only underscores the propriety of the Examiner’s proposed
combination.
In short, nothing on this record indicates that Asofsky criticizes,
discredits, or otherwise discourages investigation into the invention claimed,
including modifying Asofsky to, among other things, provide an appliance at
least partially including the first or second device, as required for teaching
away. See Norgren, 699 F.3d at 1326; see also Kahn, 441 F.3d at 990.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 25. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
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references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 27), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
petitionable matter that is not before us, as are objections regarding
procedural inconsistencies associated with that requirement. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”); MPEP § 1002.02(c)
(requiring that Technology Center Directors decide petitions from an
Examiner’s final decision requiring restriction in patent applications).
Therefore, to the extent there are inconsistencies between the Examiner’s
restriction requirement and obviousness rejection, the Examiner’s restriction
requirement is not before us, nor are we bound by it. Rather, only the
Examiner’s obviousness rejection is before us—a rejection that is
(1) articulated in the Final Office Action from which this appeal was taken,
and (2) based on the cited prior art.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
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affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 26. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
18–19.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 26), that is a petitionable matter that is not before us.
See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 26) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 19, and claim 26 not argued separately with particularity.

Claims 20–22
We also sustain the Examiner’s rejection of claim 20 reciting the
appliance’s primary functionality is associated with food storage, handling,
or preparation.
Despite Appellant’s arguments to the contrary (Appeal Br. 19–20;
Reply Br. 27), we see no error in the Examiner’s reliance on the cited prior
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art for at least suggesting the recited limitations for the reasons noted above
and by the Examiner. Final Act. 10; Ans. 20–21.
As the Examiner explains, the rejection does not rely solely on
Asofsky in rejecting claim 20, but rather Asofsky and DeVaul collectively.
See Ans. 21. Not only does Asofsky’s paragraph 39 indicate that the
automated devices include food preparation and storage appliances, such as
refrigerators, freezers, ovens, stoves, and electric ranges, but DeVaul’s
paragraphs 19 and 33 note, quite broadly, that “media devices” can be any
type of controllable device, including (1) home automation devices that
control the environmental aspects of a location, and (2) some other type of
device. This teaching at least suggests that DeVaul’s media devices include
appliances whose primary functionality is at least associated with food
storage, handling, or preparation, particularly since effective food storage
and handling depends on, among other things, various environmental aspects
of a location, including temperature and smokiness. See ACADEMIC PRESS
DICTIONARY OF SCIENCE AND TECHNOLOGY 863 (Christopher Morris ed.,
1992) (describing various food preservation techniques including sun-
drying, cooking, and smoking in connection with food science and
technology). Therefore, one of ordinary skill would have considered the
recited appliance functionality obvious in view of Asofsky and DeVaul.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 20, and claims 21 and 22 not argued separately with
particularity.

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Claims 23 and 24
We also sustain the Examiner’s rejection of claim 23 reciting the
appliance’s primary function is associated with environmental control, and
the appliance consists of, or is part of, a Heating, Ventilation and Air
Conditioning (HVAC) system.
Despite Appellant’s arguments to the contrary (Appeal Br. 23; Reply
Br. 28), we see no error in the Examiner’s reliance on the cited prior art for
at least suggesting the recited limitations for the reasons noted above and by
the Examiner. Final Act. 11; Ans. 21–22.
As the Examiner explains, the rejection does not rely solely on
Asofsky in rejecting claim 23, but rather Asofsky and DeVaul collectively.
See Ans. 21–22. Not only does Asofsky’s paragraph 39 indicate that the
automated devices include environmental control appliances, such as climate
control systems, but DeVaul’s paragraphs 19 and 33 note, quite broadly, that
“media devices” can be any type of controllable device, including (1) home
automation devices that control the environmental aspects of a location, and
(2) some other type of device. This teaching at least suggests that DeVaul’s
media devices include appliances whose primary functionality is at least
associated with environmental control and at least part of a HVAC system.
Therefore, one of ordinary skill would have considered the recited appliance
functionality obvious in view of Asofsky and DeVaul.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 23, and claim 24 not argued separately with particularity.

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Claim 25
We also sustain the Examiner’s rejection of claim 25 reciting the
appliance’s primary function is associated with cleaning, where the
appliance primary function is associated with clothes cleaning and the
appliance is a washing machine or a clothes dryer, or wherein the appliance
is a vacuum cleaner.
Despite Appellant’s arguments to the contrary (Appeal Br. 20; Reply
Br. 28), we see no error in the Examiner’s reliance on the cited prior art for
at least suggesting the recited limitations for the reasons noted above and by
the Examiner. Final Act. 11–12; Ans. 22.
As the Examiner explains, the rejection does not rely solely on
Asofsky in rejecting claim 25, but rather Asofsky and DeVaul collectively.
See Ans. 22. Not only does Asofsky’s paragraph 39 indicate that the
automated devices include washing and drying machines, but DeVaul’s
paragraphs 19 and 33 note, quite broadly, that “media devices” can be any
type of controllable device, including (1) home automation devices that
control the environmental aspects of a location, and (2) some other type of
device. This teaching at least suggests that DeVaul’s media devices include
appliances whose primary functionality is at least associated with a washing
machine or clothes dryer, particularly given the elevated environmental
temperatures in those devices during use. Therefore, one of ordinary skill
would have considered the recited appliance functionality obvious in view of
Asofsky and DeVaul.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 25.

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Claim 29
We also sustain the Examiner’s rejection of claim 29 reciting the
actuator is an electric light source that emits, responsive to the actuator
command, non-visible light for illumination or indication, where the non-
visible light is infrared, ultraviolet, x-rays, or gamma rays.
Despite Appellant’s arguments to the contrary (Appeal Br. 20–22;
Reply Br. 28–30), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations. Final Act. 13; Ans.
23–24.
First, Asofsky’s automated devices include light fixtures and lighting
systems in paragraph 39, and the IVR system can be used to turn lights in a
home on or off in paragraph 48. Notably, Asofsky does not say that these
lights or lighting systems are limited to visible light sources as Appellant
seemingly suggests (see Appeal Br. 21; Reply Br. 30), nor has Appellant
shown that these lighting systems cannot include at least some non-visible
light sources, including “black light” sources. See WEBSTER’S NEW WORLD
DICTIONARY OF AMERICAN ENGLISH 145 (3d College ed. 1993) (defining
“black light” as “ultraviolet or infrared radiation used for fluorescent effects,
photography, etc. in the dark”); Lexico.com, Oxford University Press
(2021), https://www.lexico.com/en/definition/black_light (defining “black
light” as “[u]ltraviolet or infrared radiation, invisible to the eye”). Notably,
the latter dictionary includes exemplary sentences that use the term “black
light” in the context of its use in a building or home.8 That Asofsky’s

8 See Lexico Dictionary, at 1 (“She also used black light in some light
sculptures to create glowing bluish reflections that gave a somber, nighttime
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automated devices include, quite broadly, any other suitable home appliance
in paragraph 39 underscores Asofsky’s suggestion that a non-visible light
source can be an automated device or that such automated devices would
have been at least an obvious variation.
Appellant’s contention, then, that Asofsky allegedly teaches away
from non-visible lighting as claimed (Appeal Br. 21; Reply Br. 30) is
unavailing. In short, nothing on this record indicates that Asofsky criticizes,
discredits, or otherwise discourages investigation into the invention claimed,
including modifying providing the recited non-visible light source as
required for teaching away. See Norgren, 699 F.3d at 1326; see also Kahn,
441 F.3d at 990. Rather, such an enhancement uses prior art elements
predictably according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417. That DeVaul’s paragraphs 19 and
33 note, quite broadly, that “media devices” can be any type of controllable
device including some other type of undisclosed device only bolsters the
notion that controlling non-visible light sources would have been at least an
obvious variation.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 29. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the

appearance to them.”); see also id. (“On the wall at each end are two small
monitors that hold in black light the illuminated images of ships passing.”);
id. (“The only light was black light and the whole room seemed to glow with
rapidly moving figures around one another.”) (some italicizing omitted for
emphasis).
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references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 29–30. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
23–24.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 29–30), that is a petitionable matter that is not before
us. See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 29–30) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 29.

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Claim 36
We also sustain the Examiner’s rejection of claim 36 reciting the first
device further comprises an additional actuator coupled to the first wireless
transceiver for being activated, operated, or controlled responsive to
receiving an additional actuator command, where the server device is
operative to send the additional actuator command responsive to the voice
processing.
Despite Appellant’s arguments to the contrary (Appeal Br. 24–25;
Reply Br. 28–30), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations. Final Act. 13; Ans.
27–30 (citing Asofsky ¶¶ 4, 48).
Appellant’s contention that Asofsky fails to disclose a single device
with microphones and an actuator that is voice-controlled by an external
server (Appeal Br. 25; Reply Br. 37) is unavailing. As noted previously in
connection with claim 1 from which claim 36 depends, the Examiner relies
on DeVaul—not Asofsky—for teaching the recited microphones and voice
control. See Final Act. 5–6. Therefore, Appellant’s arguments regarding
Asofsky’s individual shortcomings in this regard do not show
nonobviousness where, as here, the rejection is based on the cited
references’ collective teachings. See In re Merck, 800 F.2d at 1097. On this
record, the Examiner’s proposed enhancement uses prior art elements
predictably according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 36.

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THE REJECTION OVER ASOFSKY, DEVAUL, AND BELILES
We also sustain the Examiner’s obviousness rejection of claim 12
reciting the first and second devices are each addressable in the wireless
network or the Internet using distinct locally administered addresses or
universally administered digital addresses stored in a volatile or non-volatile
memory of the respective device and uniquely identifying the respective
device in the wireless network or in the Internet.
Despite Appellant’s arguments to the contrary (Appeal Br. 22–23;
Reply Br. 30–33), we see no error in the Examiner’s reliance on the cited
prior art for at least suggesting the recited limitations. Final Act. 13–15;
Ans. 26–27 (citing Beliles ¶¶ 14, 17, 34–35, 37; Fig. 3).
As shown in Beliles’s Figure 1 reproduced below, Beliles discloses a
computer network 100 in a building comprising, among other things, fire
sensor 123 connected to sensor translator 132 that is, in turn, connected to
router 152 that is connected to network cloud 110 to which fire suppression
device 161 is connected. See Beliles ¶¶ 15–17, 27–29, 34.

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Beliles’s computer network 100 in Figure 1

Although physical-based events, such as detected fires, can be
conveyed from the sensors to monitoring/control system 140 using
proprietary signaling systems, such as an internal fire alarm system, these
events can also be sent over the Internet. Beliles ¶ 34.
Given this functionality, Appellant’s contention that Asofsky and
Beliles were ostensibly combined improperly because they are in different
fields and not analogous to one another (Appeal Br. 22–23) is unavailing.
Prior art is analogous if it is (1) from the same field of endeavor regardless
of the problem addressed, or (2) reasonably pertinent to the particular
problem with which the inventor is involved. Bigio, 381 F.3d at 1325. The
analogous art test, then, does not ask whether prior art references are
analogous to each other as Appellant seems to suggest (see Appeal Br. 22–
23), but rather asks whether the references are analogous to the claimed
subject matter. See id.; see also Kahn, 441 F.3d at 986–87. Because
Asofsky, DeVaul, and Beliles all remotely monitor and control electrical
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devices, including those in buildings, as the Examiner indicates (Ans. 26–
27), the references are not only in the same field of endeavor as Appellant’s
invention, namely remotely controlling devices, but they are also reasonably
pertinent to Appellant’s problem in that regard, at least with respect to
remotely controlling devices via a network. Notably, Appellant’s field of
endeavor, namely remotely controlling devices, is reasonably consistent with
the field of endeavor articulated by another panel of this Board in a related
application, namely that involving commanding an actuator responsive to a
sensor response. See Ex parte Binder, Appeal 2018-007694 (PTAB Mar. 2,
2020), at 37, reh’g denied (PTAB May 18, 2020). Therefore, to the extent
Appellant contends that Beliles’ field of endeavor is somehow inconsistent
with that articulation (see Reply Br. 31), we disagree.
Nor do we find error in the Examiner’s rationale to combine Beliles
with the Asofsky/DeVaul system, namely to identify networked devices that
respond to non-network events, such as fires in buildings, where a server
initiates and controls a physical device, such as a fire-suppression system,
responsive to those detected events. See Ans. 26–27. Such an enhancement
uses prior art elements predictably according to their established functions—
an obvious improvement. See KSR, 550 U.S. at 417.
Appellant’s contention that the Examiner’s proposed combination
changes Asofsky’s operating principle (Reply Br. 33) is unavailing. It is
well settled that “a determination of obviousness based on teachings from
multiple references does not require an actual, physical substitution of
elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations
omitted). Nor is the test for obviousness whether a secondary reference’s
features can be bodily incorporated into the structure of the primary
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reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981). “Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.” Id. And here, the Examiner’s proposed
combination predictably uses prior art elements according to their
established functions to yield a predictable result. See KSR, 550 U.S. at 417.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 32–33. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
ground of rejection. See Reply Br. 29–30. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
26–27.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 33), that is a petitionable matter that is not before us.
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See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 33) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 12, and claim 13 not argued separately with particularity.

THE REJECTION OVER ASOFSKY, DEVAUL, AND KIKO
We also sustain the Examiner’s obviousness rejection of claims 15–18
and 31–35 over Asofsky, DeVaul, and Kiko. Final Act. 15–19; Ans. 27–29.
Claim 15 recites the wireless network is a wireless control network that is
according to, or based on, ZigbeeTM, IEEE 802.15.4-2003, or Z-WaveTM
standards. Claim 31 recites a motion actuator that causes linear or rotary
motion responsive to the actuator command. Claim 32 recites a sounder for
converting electrical energy to an omnidirectional, unidirectional, or
bidirectional pattern emitted, audible or inaudible, sound waves responsive
to the actuator command, and claim 33 recites the sounder comprises (1) an
electromagnetic, piezoelectric, electrostatic, ribbon, planar, or bending wave
loudspeaker, or (2) an electric bell, a buzzer, beeper, chime, whistle, or
ringer. Claim 34 recites operating the actuator responsive to the actuator
command comprises playing digital audio content that is pre-recorded or a
synthesized voice. Claim 35 recites operating the actuator responsive to the
actuator command comprises (1) simulating the voice of a human being or
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generating music, or (2) sounding a syllable, word, phrase, sentence, or a
short or long story using a male or female voice.
Although the Examiner acknowledges that Asofsky and DeVaul lack
these recited features, the Examiner nonetheless cites Kiko for teaching
these features in concluding that the claim would have been obvious. See
Final Act. 15–19; Ans. 27–29.
Appellant does not dispute the Examiner’s findings based on Kiko for
at least suggesting the recited limitations, but rather contends that (1)
Asofsky and Kiko9 are improperly combined because they are not analogous
to each other, and (2) the Examiner provides no combinability rationale in
connection with claims 31 to 36 because the features recited in those claims
are irrelevant to the features and rationale provided for claim 15. See
Appeal Br. 24; Reply Br. 34–35.
These arguments are unavailing. First, Appellant’s contention that
Asofsky and Beliles were ostensibly combined improperly because they are
in different fields and not analogous to one another (Appeal Br. 24) is
unavailing. Prior art is analogous if it is (1) from the same field of endeavor
as the invention, regardless of the problem addressed, or (2) reasonably
pertinent to the particular problem with which the inventor is involved.
Bigio, 381 F.3d at 1325. The analogous art test, then, does not ask whether
prior art references are analogous to each other as Appellant seems to
suggest (see Appeal Br. 24), but rather asks whether the references are

9 Although Appellant refers to the alleged improper combination of Asofsky
and Beliles in the heading for this argument on page 24 of the Appeal Brief,
the associated argument nonetheless pertains to the combinability of
Asofsky and Kiko.
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analogous to the claimed subject matter. See id.; see also Kahn, 441 F.3d at
986–87. Because Asofsky, DeVaul, and Kiko all remotely monitor and
control electrical devices, including those in buildings, as the Examiner
indicates (Ans. 27–28), the references are not only in the same field of
endeavor as Appellant’s invention, namely remotely controlling devices, but
they are also reasonably pertinent to Appellant’s problem in that regard, at
least with respect to remotely controlling devices via a wireless network.
Nor do we find error in the Examiner’s combining Kiko’s relied-upon
features with the Asofsky/DeVaul system as the Examiner proposes,
particularly given the Examiner’s undisputed findings from Kiko for at least
suggesting the particular actuators and actuator operation in claims 31 to 35.
On this record, the Examiner’s proposed enhancements to the
Asofsky/DeVaul system in light of Kiko’s undisputed teachings uses prior
art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
We reach this conclusion even assuming, without deciding, that
nothing in the Asofsky reference indicates its proposed modification as
Appellant contends. See Reply Br. 35. Our emphasis underscores that
Appellant’s contention runs counter to the well-established notion that the
motivation to combine prior art references need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself. See DyStar, 464 F.3d at 1361. Therefore, to the
extent Appellant contends that Asofsky must articulate or otherwise disclose
the basis for the Examiner’s proposed modification, we disagree.
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To the extent that Appellant contends that the Examiner’s obviousness
rationale is inconsistent with the patentably-distinct inventions articulated in
a restriction requirement made during prosecution of the present application
(see Reply Br. 36–37), such a contention is unavailing. The propriety of the
Examiner’s restriction requirement that was made during prosecution is a
petitionable matter that is not before us, as are objections regarding
procedural inconsistencies associated with that requirement. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”); MPEP § 1002.02(c)
(requiring that Technology Center Directors decide petitions from an
Examiner’s final decision requiring restriction in patent applications).
Therefore, to the extent there are inconsistencies between the Examiner’s
restriction requirement and obviousness rejection, the Examiner’s restriction
requirement is not before us, nor are we bound by it. Rather, only the
Examiner’s obviousness rejection is before us—a rejection that is
(1) articulated in the Final Office Action from which this appeal was taken,
and (2) based on the cited prior art.
To the extent Appellant contends that the claimed invention yields
unexpected results as indicia of the claimed invention’s non-obviousness
(see Reply Br. 36), such an argument was not raised in the Appeal Brief and
is, therefore, waived as untimely. See 37 C.F.R. § 41.41(b)(2). Nor has
good cause been shown to raise this new argument in the first instance in the
Reply Brief.
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Nevertheless, even if this argument was timely presented—which it
was not—it is still unpersuasive. To be sure, non-obviousness can be
supported with unexpected results, namely where the claimed invention
exhibits some superior property or advantage that ordinarily skilled artisans
would have found surprising or unexpected. See Forest Labs., Inc. v.
Sigmapharm Labs., LLC, 918 F.3d 928, 937 (Fed. Cir. 2019) (citing United
States v. Adams, 383 U.S. 39, 51–52 (1966)).
But here, Appellant merely summarily asserts that controlling an
actuator in a home computer by talking to another device in the home is
allegedly unexpected because the home computer is traditionally the main
computing, control, and communication center in a home. Reply Br. 36.
Not only is this assertion speculative and unsubstantiated, to the extent this
assertion pertains to a secondary consideration of non-obviousness, it falls
well short of outweighing the evidence of obviousness on this record.
Although evidence of secondary considerations, such as unexpected
results, must be considered and “may often be the most probative and cogent
evidence in the record,” Pentec, Inc. v. Graphic Controls Corp., 776 F.2d
309, 315 (Fed. Cir. 1985), it does not control the obviousness conclusion.
Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 768 (Fed. Cir. 1988). A
strong case of obviousness cannot be overcome by a far weaker showing of
objective indicia of nonobviousness as is the case here. See Tokai Corp. v.
Easton Enter., Inc., 632 F.3d 1358, 1371 (Fed. Cir. 2011).
Nor are we persuaded by Appellant’s contentions that the Examiner’s
responses to arguments raised in the Appeal Brief in the Examiner’s Answer
affect the grounds of rejection upon which this appeal is taken, such that
sustaining the Examiner’s rejection would ostensibly constitute a new
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ground of rejection. See Reply Br. 36. Here, the Examiner’s Answer
explains why the rejection is proper based on the Examiner’s findings and
conclusions made in connection with the proposed combination. See Ans.
27–30.
To the extent Appellant contends that the Examiner’s explanation in
the Answer constitutes an undesignated new ground of rejection in the
Answer (see Reply Br. 36), that is a petitionable matter that is not before us.
See 37 C.F.R. § 41.40(a); see also MPEP § 1207.03(b). Where, as here,
Appellant did not file such a petition, Appellant’s contentions regarding any
alleged new ground of rejection in the Answer are waived. See 37 C.F.R.
§ 41.40(a).
Given this waiver, Appellant’s contentions that our sustaining the
Examiner’s rejection in light of the Examiner’s Answer should be
considered a new ground of rejection (Reply Br. 36) are unpersuasive.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 15 and 31–35, and claims 16–18 not argued separately with
particularity.

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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–11, 14,
19–30, 36
103 Asofsky, DeVaul 1–11, 14,
19–30, 36

12, 13 103 Asofsky, DeVaul,
Beliles
12, 13
15–18, 31–
35
103 Asofsky, DeVaul,
Kiko
15–18, 31–
35

Overall
Outcome
1–36

TIME PERIOD FOR RESPONSE
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).

AFFIRMED