Google LLC

Patent Trials and Appeals BoardJun 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. Appeal 2021-002769 Application 16/409,389 2 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. Appeal 2021-002769 Application 16/409,389 3 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. Appeal 2021-002769 Application 16/409,389 4 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 Appeal 2021-002769 Application 16/409,389 5 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 Appeal 2021-002769 Application 16/409,389 6 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 Appeal 2021-002769 Application 16/409,389 7 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 Appeal 2021-002769 Application 16/409,389 8 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” Appeal 2021-002769 Application 16/409,389 9 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 Appeal 2021-002769 Application 16/409,389 10 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. Appeal 2021-002769 Application 16/409,389 11 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 Appeal 2021-002769 Application 16/409,389 12 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. Appeal 2021-002769 Application 16/409,389 13 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. Appeal 2021-002769 Application 16/409,389 14 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