Townsend, Randolph G.

Patent Trials and Appeals Board

Sep 29, 2020

2019002934 (P.T.A.B. Sep. 29, 2020)

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.
13/432,171 03/28/2012 Randolph G. Townsend 203185-10001 6313
3705 7590 09/29/2020
ECKERT SEAMANS CHERIN & MELLOTT LLC
U.S. Steel Tower
600 Grant Street, 44th Floor
Pittsburgh, PA 15219
EXAMINER
BARAKAT, MOHAMED
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
09/29/2020 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):
ipmail@eckertseamans.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANDOLPH G. TOWNSEND
Appeal 2019-002934
Application 13/432,171
Technology Center 2600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
JESSICA C. KAISER, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–14, and 16–38 (See Final Act. 1).
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 Air Heater Seal
Company, Inc. (Appeal Br. 1).
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CLAIMED SUBJECT MATTER
The claims are directed to a range and notification system, and
associated method, for use with a cooking range (Spec. Abstract, ¶ 1).
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A method of providing an indication regarding an apparatus
that is structured to be switched between one state and an
operated state, the method comprising:

detecting at least one of: that the apparatus has been switched
to the operated state, and that the apparatus is in the operated
state; and

periodically outputting an audible notification representative
of at least a first spoken word whose literal content includes
a duration of time that the apparatus has remained in the
operated state;

the periodically outputting of an audible notification
comprising outputting a first audible notification that is
representative of at least a first spoken word whose literal
content includes the amount of time that has elapsed since
the apparatus was placed in the operated state; and

the periodically outputting of an audible notification further
comprising outputting a number of further audible
notifications subsequent to the outputting of the first audible
notification, each further audible notification of the number
of further audible notifications being representative of at
least a first spoken word whose literal content includes an
updated total amount of time that has elapsed since the
apparatus was placed in the operated state.

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Ueda US 4,517,431 May 14, 1985
Thiessen US 6,552,647 B1 Apr. 22, 2003
Volodarsky US 2006/0202848 A1 Sept. 14, 2006
Heilman US 2008/0136581 A1 June 12, 2008
White US 2009/0017404 A1 Jan. 15, 2009
Noguchi US 2012/0056745 A1 Mar. 8, 2012

REJECTIONS
Claims Rejected 35 U.S.C. § Reference(s)/Basis
1, 5, 8, 10, 11, 14, 18,
20, 22, 23, 32–34, 37,
38
103(a) Volodarsky, Ueda,
Noguchi
3, 4, 16–17, 24–26, 30,
31
103(a) Volodarsky, Ueda,
Noguchi, White
6, 7, 9, 12, 13, 19, 21,
35, 36
103(a) Volodarsky, Ueda,
Noguchi, Thiessen
27 103(a) Volodarsky, Ueda,
Noguchi, White,
Thiessen
28, 29 103(a) Volodarsky, Ueda,
Noguchi, White,
Heilman

We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant did not make in the Briefs are
deemed to be waived (See 37 C.F.R. § 41.37(c)(1)(iv)).

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ANALYSIS
Non-Functional Descriptive Matter
Initially, we note Appellant is arguing the content of output data, i.e.,
whether the output represents a particular elapsed time. The claim does not
recite determining the recited elapsed times. Nor do the Specification or
claims disclose any details about how the elapsed times are calculated or
how the elapsed times are converted into spoken words (see generally
Spec.). Indeed, the content of the output does not affect the recited process
of “periodically outputting an audible notification . . . comprising outputting
a first audible notification . . . and further comprising outputting a number of
further audible notifications subsequent to the outputting of the first audible
notification,” as recited in the independent claims 1, 14, 37, and 38. The
content of the output constitutes non-functional descriptive material
(NFDM) intended for human perception.
On this claim construction issue, we are bound by a PTAB
precedential decision: Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008)
(precedential) (“[T]he nature of the information being manipulated does not
lend patentability to an otherwise unpatentable computer implemented
product or process.”). Further guidance regarding NFDM is found in the
MPEP: “[W]here the claim as a whole is directed to conveying a message or
meaning to a human reader independent of the intended computer system,
and/or the computer-readable medium merely serves as a support for
information or data, no functional relationship exists” (MPEP § 2111.05
(III.)).
Moreover, “[t]o be given patentable weight, the printed matter and
associated product must be in a functional relationship. A functional
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relationship can be found where the printed matter performs some function
with respect to the product to which it is associated” (MPEP § 2111.05).
Here, the particular information content of the claimed “spoken word”
(i.e., printed matter in audible format) does not functionally change or
otherwise affect how the step of “periodically outputting” is performed or
how the apparatus functions. Indeed, the function of “outputting an audible
notification” is the same whether the “audible notification is representative
of at least a first spoken word whose literal content includes a duration of
time that the apparatus has remained in the operated state” or whether the
audible notification includes the current time. Thus, the claim limitation is
directed to printed matter because “it claims the content of information” (In
re DiStefano, 808 F.3d 845,848 (Fed. Cir. 2015)). Given the lack of
sufficient evidence that the content of the audible notification affects the
function of the apparatus or step of outputting, we determine it is reasonable
to characterize the claimed content of the audible notification as
nonfunctional descriptive material; that is, akin to printed matter. Just as
printed matter is not given patentable weight, similarly the content of the
“audible notification” recited in claims 1, 14, 37, and 38 as a distinction over
Voldarsky’s audible warning of operating time, is not patentably
consequential. “[N]onfunctional descriptive material, being useful and
intelligible only to the human mind, is given no patentable weight” (Ex parte
Graf, Appeal 2012-003941, 2013 WL 3873066, at *4 (PTAB July 23, 2013)
(non-precedential), aff’d, In re Graf, 585 F. App’x 1012 (Fed. Cir. 2014)
(non-precedential); cf In re DiStefano, 808 F.3d 845 (Fed. Cir. 2015)); as
explained in In re Xiao, 462 F. App’x 947, 950-52 (Fed. Cir. 2011) (non-
precedential):
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[T]he Board did not create a new “mental distinctions” rule in
denying patentable weight . . . . On the contrary, the Board
simply expressed the above-described functional relationship
standard in an alternative formulation—consistent with our
precedents—when it concluded that any given position label’s
function . . . is a distinction “discernable only to the human
Mind” Board Decision at 6; see In re Lowry, 32 F.3d 1579,
15 83 (Fed. Cir. 1994) (describing printed matter as “useful and
intelligible only to the human mind”) (quoting In re Bernhart,
417 F.2d 1395, 1399 (CCPA 1969)).
“The rationale behind this line of cases is preventing the indefinite patenting
of known products by the simple inclusion of novel, yet functionally
unrelated limitations” (King Pharms., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
1279 (Fed. Cir. 2010)). Accordingly, the argument that the claimed audible
notification distinguishes from that of Voldarsky or any of the additional
cited references in that it is “representative of at least a first spoken word
whose literal content includes a duration of time that the apparatus has
remained in the operated state” and the recited “further audible notification
being representative of at least a first spoken word whose literal content
includes and updated total amount of time that has elapsed since the
apparatus was placed in the operated state,” as recited in claim 1 and as
commensurately recited in claims 14, 37, and 38, is unpersuasive as to error
in the rejection.
To facilitate compact prosecution, however, we address Appellant’s
contentions regarding the obviousness of the recited claims over the cited
prior art.

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35 U.S.C. § 103
Claims 1, 5, 8, 10, 11, 14, 18, 20, 22, 23, 32–34, 37, and 38
Appellant contends claims 1, 5, 8, 10, 11, 14, 18, 20, 22, 23, 32–34,
37, and 38 would not have been obvious over Volodarsky, Ueda, and
Noguchi (Appeal Br. 7–10).
Claims 1, 14, 27, and 38
With respect to claims 1, 14, 37, and 38, the issue presented by the
arguments is whether the combination of Volodarsky, Ueda, and Noguchi
teaches, suggests, or otherwise renders obvious:
the periodically outputting of an audible notification comprising
outputting a first audible notification that is representative of at
least a first spoken word whose literal content includes the
amount of time that has elapsed since the apparatus was placed
in the operated state; and

the periodically outputting of an audible notification further
comprising outputting a number of further audible notifications
subsequent to the outputting of the first audible notification, each
further audible notification of the number of further audible
notifications being representative of at least a first spoken word
whose literal content includes an updated total amount of time
that has elapsed since the apparatus was placed in the operated
state,
as recited in claim 1. Appellant argues neither Ueda nor Noguchi teaches:
outputting of a spoken word whose literal content includes an
amount of time that has elapsed since the apparatus was placed
in an operated state, and . . . outputting of a further spoken word
whose literal content includes an updated total amount of time
that has elapsed since the apparatus was placed in the operated
state
(Appeal Br. 7).
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We are not persuaded by Appellant’s contentions. Specifically, in our
previous Decision of September 6, 2017 (hereinafter “Dec.”), we were “not
persuaded the Examiner erred in finding Volodarsky discloses ‘periodically
outputting an audible notification representative of a duration of time that
the apparatus has remained in the operated state,’ as recited in claims 38 and
similarly recited in claim 37” (Dec. 4–5). Further, we were “not persuaded
the Examiner erred in finding the combination of Volodarsky and Ueda
teaches ‘an audible notification representative of at least a first spoken word
whose literal content includes a duration of time that the apparatus has
remained in the operated state,’ as recited in claim 1 and similarly recited in
claim 14” (id. at 6–7). In response, Appellant amended the claims to include
the elements at issue. The Examiner finds Ueda and Noguchi teach the
disputed limitations (Ans. 4–5 (citing Ueda, 8:31–9:25; Noguchi ¶¶ 9–11)).
As set forth in our previous Decision (Dec. 5), “Volodarsky teaches a
system which ‘provide[s] a non-invasive audible and visual warning to
indicate to [a] person that the range is on . . . at intervals of two to three
minutes (or [some] other programmable interval)’ (Volodarsky ¶ 11; see id.
¶¶ 8, 30–31).” We further found (Dec. 6–7) “Volodarsky teaches
‘communication of other information, such as . . . range operating time’ to a
person ([Volodarsky] ¶ 31)” and “Ueda teaches audio ‘output notification[s]
that [are] representative of at least a spoken wor[d] whose literal content
includes duration of time’ e.g., ‘about 8 minutes’ (Ueda, 8:31–36).” Thus,
we were not persuaded the Examiner erred in finding the combination of
Volodarsky and Ueda teaches “periodically outputting an audible
notification representative of at least a first spoken word whose literal
content includes a duration of time that the apparatus has remained in the
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operated state,” as recited in claim 1 and as commensurately recited in
claims 14, 37, and 38 (see Dec. 6–7).
Appellant argues Ueda’s outputs “do not constitute the outputting of a
spoken word whose literal content includes an amount of time that has
elapsed since the apparatus was placed in an operated state[ and] . . .
subsequent outputting of a further notification after a further predetermined
time period has elapsed” (Appeal Br. 7). Appellant has not persuaded us an
ordinarily skilled artisan would not have found it obvious to modify Ueda’s
teaching of outputting of a spoken word whose literal content includes a
duration of time that the apparatus has remained in the operated state to
output an amount of time that has elapsed since the apparatus was placed in
the operated state and subsequently output a further notification after a
predetermined time period has elapsed. Indeed, the combination of
Volodarsky and Ueda teaches determining a duration of time and outputting
the representative spoken word.
The Examiner further provides Noguchi as support for the
determination that “it was well known in the art . . . to periodically provide
[a] notification after a first predetermined time is elapsed” (Final Act. 5
(citing Noguchi ¶¶ 9–11)). Noguchi teaches a notification controller to
prompt a user “after the elapse of a first period and, after a second period has
elapsed from the notification, notify the elapse of the second period”
(Noguchi ¶ 9). Noguchi further teaches the first period indicates “the
sunburn preventing treatment has finished”; “the second period corresponds
to a period spent for the sunburn preventing treatment”; and “a total period
of the first period and the second period is a period until the preset sunburn
preventing treatment loses its effect” (id. ¶¶ 10–11). Thus, Noguchi teaches
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calculating a duration of time, i.e., it is calculating how much time has
elapsed, before providing a notification.
Appellant, however, argues Noguchi fails to provide audible outputs
that are spoken word, as recited, but rather, provides audible outputs “in the
form of ‘a beep sound such as a buzzer’” (Appeal Br. 9). Setting aside that
Appellant’s argument is directed to the content of the information, which is
non-functional descriptive material, as discussed above, we agree with the
Examiner that Appellant is arguing the references individually (Ans. 7)
while the Examiner is relying on the combination of teachings of
Volodarsky, Ueda, and Noguchi (Final Act. 5; Ans. 6–7). The Examiner
relies on the combination of Volodarsky and Ueda to teach audible outputs
(Final Act. 4). One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references
(In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986)).
Thus, we are not persuaded by Appellant that the Examiner erred in
finding the combination of Volodarsky, Ueda, and Noguchi teaches:
the periodically outputting of an audible notification
comprising outputting a first audible notification that is
representative of at least a first spoken word whose literal
content includes the amount of time that has elapsed since
the apparatus was placed in the operated state; and

the periodically outputting of an audible notification further
comprising outputting a number of further audible
notifications subsequent to the outputting of the first audible
notification, each further audible notification of the number
of further audible notifications being representative of at
least a first spoken word whose literal content includes an
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updated total amount of time that has elapsed since the
apparatus was placed in the operated state,
as recited in claim 1 and as commensurately recited in claims 14, 37, and 38.
The Examiner concludes an ordinarily skilled artisan would have
found it obvious to combine the teachings of Volodarsky and Ueda “to
satisfy system needs and/or environment requirement which require using
such notification method” (Ans. 6). Thus the Examiner has articulated
reasoning as to why an ordinarily skilled artisan would have found it
obvious to output an audible notification representative of at least a first
spoken word, as recited.
Appellant contends (i) Ueda discloses “different notifications” than
those recited; (ii) the Examiner’s assertion that “the recited elements fail to
yield unexpected results . . . is not a requirement of patentability”; (iii) the
Examiner’s “suggestion” that it would have been obvious to combine the
teaching to “‘satisfy system needs and/or environment requirement . . .
which require using such notification method’ . . . is an insufficient basis
upon which to find that a claimed invention is obvious”; and (iv) the
Examiner has not shown what the relevant “solutions” are or that the
relevant “solutions” are “finite in number,” are predictable, or have a
reasonable expectation of success (Appeal Br. 7–8). Appellant has failed to
proffer sufficient evidence or argument to persuade us the Examiner’s
articulated reasoning is in error. Further, although Appellant disagrees with
the Examiner’s finding that combining the three references would have been
obvious, Appellant provides no additional detail as to why the Examiner’s
articulated motivation lacks a rational basis or why the Examiner’s
reasoning is in error (Ans. 9).
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We agree with the Examiner that an ordinarily skilled artisan would
have found it obvious to output spoken word of a duration of time
comprising an amount of time that has elapsed and subsequently, an updated
total amount of time that has elapsed since the apparatus was placed in the
operated state. Here, as discussed supra, we find that Volodarsky and Ueda
teach periodically outputting a duration of time that the apparatus has
remained in the operated state.
Additionally, Appellant has not persuaded us an ordinarily skilled
artisan would not have found it obvious to combine the teachings of
Volodarsky and Ueda to output an amount of time that has elapsed, as
recited, and subsequently, an updated total amount of time that has elapsed,
as recited. Moreover, we are unpersuaded that combining the teachings
would have been “uniquely challenging or difficult for one of ordinary skill
in the art” or “represented an unobvious step over the prior art” (see
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007)) in light of the teachings of Volodarsky and Ueda. Indeed, the added
elements recite specifics of what the duration of time is. A skilled artisan is
“a person of ordinary creativity, not an automaton” (See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 420-21 (2007)).
Furthermore, the Examiner articulates reasoning with a rational
underpinning as to why an ordinarily skilled artisan would have combined
the teachings of Volodarsky, Ueda, and Noguchi, concluding that “[i]t would
have been obvious to one of ordinary skill in the art . . . to generate
notifications after predetermined time durations elapses in order to provide
maximum awareness to the user by providing an alert periodically after each
time passes and thereby increase the overall user convenience” (Final Act.
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5). Appellant has not persuasively addressed the Examiner’s articulated
motivation. We are unpersuaded outputting an elapsed amount of time
would not have been obvious in light of Volodarsky’s and Ueda’s teachings
of outputting a duration of time and Noguchi’s teaching of determining an
elapsed time.
Appellant argues in the Reply Brief that the Examiner used
“prohibited hindsight” (Reply Br. 1–2). Appellant had an opportunity to
raise the arguments in the Appeal Brief, and has provided no showing of
good cause for not doing so. In the absence of a showing of good cause by
Appellant, the new arguments by Appellant are thus deemed waived (see 37
C.F.R. § 41.41(b)(2); see also Optivus Tech., Inc. v. Ion Beam Appl’ns S.A.,
469 F.3d 978, 989 (Fed. Cir. 2006) (“[A]n issue not raised by an appellant in
its opening brief ... is waived.”) (Internal citations and quotation marks
omitted)).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Volodarsky, Ueda and Noguchi teaches, suggests, or
otherwise renders obvious the limitations as recited in independent claim 1
and as commensurately recited in independent claims 14, 37, and 38.

Claims 5 and 18
With respect to claims 5 and 18, Appellant argues that “the references,
whether considered individually or in combination, fail to disclose, teach, or
suggest the outputting of another audible notification representative of one
or more spoken words whose literal content includes a predetermined
condition detected in the vicinity of an apparatus” (Appeal Br. 10–11).
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Appellant proffers insufficient evidence or argument to persuade us of
error in the Examiner’s findings and conclusions (See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (stating that interpreting 37 C.F.R.
§ 41.37(c)(1)(vii) to require a more substantive argument than a naked
assertion that the prior art fails to teach limitation in order to address a claim
separately, is not an unreasonable interpretation of the rule)). Additionally,
new arguments presented in the Reply Brief are not considered (see 37
C.F.R. § 41.41(b)(2); see also Optivus Tech., 469 F.3d at 989).

Remaining Dependent Claims
Appellant does not separately argue dependent claims 8, 10, 11, 20,
22, 23, and 32–34 (see Appeal Br. 10–12). Rather, Appellant relies on the
arguments set forth with respect to claim 1. For the reasons set forth supra,
Appellant has not persuaded us of error in the Examiner’s findings and
conclusions. Therefore, claims 8, 10, 11, 20, 22, 23, and 32–34 fall with
their respective independent claims.

Conclusion
For the reasons set forth supra, we sustain the rejection of claims 1, 5,
8, 10, 11, 14, 18, 20, 22, 23, 32–34, 37, and 38 under 35 U.S.C. § 103(a) for
obviousness over Volodarsky, Ueda, and Noguchi.

35 U.S.C. § 103: Claims 3, 4, 16–17, 24–26, 30, and 31
Appellant contends claims 3, 4, 16–17, 24–26, 30, and 31 would not
have been obvious over Volodarsky, Ueda, Noguchi, and White (Appeal Br.
12–15).
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Claims 3 and 16
With respect to claims 3 and 16, the issue presented by the arguments
is whether the combination of Volodarsky, Ueda, Noguchi, and White
teaches, suggests, or otherwise renders obvious
outputting as at least a portion of the audible notification an
audible sound tag representative of one or more spoken words
whose literal content includes the operational level,
as recited in claim 3 and commensurately recited in claim 16. Appellant
admits “it is known in the relevant art to operate an apparatus at any of a
plurality of levels,” as taught in White; however, according to Appellant,
“the references, whether considered individually or in combination, fail to
disclose, teach or suggest” the disputed limitation (Appeal Br. 13).
Appellant does not elaborate on why the references fail to teach the disputed
limitation.
As discussed supra, we agree with the Examiner’s finding that the
combination of Volodarsky and Ueda teaches periodic time notifications
relaying the amount of time that has elapsed since the apparatus was placed
in the operated state (Final Act. 4). The Examiner further finds, and we
agree, White teaches determining the operational level of a device (Final
Act. 13 (citing White ¶¶ 31–32, 42, 56)).
Appellant’s argument that “the references, whether considered
individually or in combination, fail to disclose, teach or suggest . . . an
audible sound tag that is representative of one or more spoken words whose
literal content includes the operational level” (Appeal Br. 12–13) is without
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elaboration and does not address the Examiner’s combination of
Volodarsky, Ueda, and White. In particular, Appellant does not address the
Examiner’s modification of Volodarsky and Ueda, teaching outputting as at
least a portion of the audible notification an audible sound tag representative
of one or more spoken words whose literal content includes the operational
level, with White, teaching the apparatus’s state includes different operating
levels, resulting in additional notification information regarding the
operating level of the apparatus (Final Act. 13–14; Ans. 9–11).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Volodarsky, Ueda, Noguchi, and White teaches, suggests, or
otherwise renders obvious the limitations as recited in claim 3 and
commensurately recited claim 16. Therefore, we sustain the rejection of
claims 3 and 16 under 35 U.S.C. § 103(a) for obviousness over Volodarsky,
Ueda, Noguchi, and White.

Remaining Dependent Claims
Appellant does not provide separate, substantive arguments for
dependent claims 4, 17, 24–26, 30, and 31 (see Appeal Br. 13–15).
Therefore, we are not persuaded of error in the Examiner’s rejection of these
claims.

Conclusion
For the reasons set forth supra, we sustain the rejection of claims 3, 4,
16–17, 24–26, 30, and 31 under 35 U.S.C. § 103(a) for obviousness over
Volodarsky, Ueda, Noguchi, and White.

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35 U.S.C. § 103: Claims 6, 7, 9, 12, 13, 19, 21, 35, and 36
Appellant contends claims 6, 7, 9, 12, 13, 19, 21, 35, and 36, would
not have been obvious over Volodarsky, Ueda, Noguchi, and Thiessen
(Appeal Br. 15–19).

Claims 6, 19, 35, and 36
With respect to claims 6 and 19, the issue presented by the arguments
is whether the combination of Volodarsky, Ueda, Noguchi, and Thiessen
teaches, suggests, or otherwise renders obvious “outputting as the another
audible notification a number of spoken words whose literal content includes
the existence of the flame,” as recited in claim 6 and as commensurately
recited in claims 19, 35, and 36 (Appeal Br. 15–16, 18–19).
Appellant points to a teaching in Thiessen, not cited by the Examiner
(Final Act. 20–21), to argue “Thiessen . . . merely discloses a carbon
monoxide (CO) detector. . . [which is ] not the same as the detection of a
flame” (Appeal Br. 15). The Examiner, however, relies on Thiessen’s
teaching of “an environmental condition sensor which senses smoke, heat,
gas, flame and/or rate of heat rise” (Final Act. 20 (citing Thiessen, 1:37–42
(citing U.S. Patent No. 5,189,392))).
As we noted in our previous decision (Dec. 9–10), we determine
claims 6 and 19 would have been obvious over Volodarsky, Ueda, White,
and Thiessen. As discussed supra, we agree with the Examiner’s finding
that the combination of Volodarsky and Ueda teaches a system which
provides notifications that an apparatus was placed in the operated state
(Final Act. 20–21; Ans. 13–14). Further, Thiessen teaches “inform[ing]
designated, responsible persons . . . of the nature of each sensed event”
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(Thiessen 3:12–18; see Dec. 9). Additionally, Thiessen teaches “an
environmental condition sensor which senses . . . flame” (Thiessen 1:40–42;
Final Act. 20; Ans. 13–15). Thus, a sensed event may be the existence of a
flame.
In the Reply Brief, Appellant argues “the device to which Thiessen . .
. is directed does not even disclose the detection of a flame[] inasmuch as
Thiessen . . . mentions in its background information . . . that a prior art
device performs an automatic shutdown in response to a detection of a
flame” (Reply Br. 3). Rather, according to Appellant, Thiessen’s disclosure
is directed to detecting carbon monoxide (id.).
“The use of patents as references is not limited to what the patentees
describe as their own inventions or to the problems with which they are
concerned. They are part of the literature of the art, relevant for all they
contain” (In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re
Lemelson, 397 F.2d 1006, 1009 (CCPA 1968))). The patent cited in
Thiessen teaches a sensor which senses flame (Thiessen 1:40–42). That it
may take action in response to that does not change that it teaches detecting
a flame.
Appellant’s contention that Thiessen performing an automatic
shutdown in response to detection of a flame “teaches away” from the
claimed invention, is untimely as this contention was not proffered in the
Appeal Brief (See 37 C.F.R. § 41.41(b)(2); see also Optivus Tech., 469 F.3d
at 989).
Appellant has not persuasively addressed the Examiner’s findings.
Thus, we are not persuaded Thiessen fails to teach or suggest “outputting as
the another audible notification a number of spoken words whose literal
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content includes the existence of the flame,” as recited in claim 6 and
commensurately recited in claims 19, 35, and 36. Accordingly, we are not
persuaded the Examiner erred in finding the combination of Volodarsky,
Ueda, Noguchi, and Thiessen teaches, suggests, or otherwise renders
obvious the limitations as recited in claims 6, 19, 35, and 36.

Claim 12
The argued issue, with respect to claim 12, is whether the Examiner
has shown the combination of references teaches “detecting a touch input on
a controller of the apparatus; and ‘providing another audible notification . . .
includ[ing] an identity of the controller’” (Appeal Br. 16–17). According to
Appellant, “Thiessen . . . includes no disclosure whatsoever of the touching
of a keyboard panel constituting a ‘sensed even’ that results in a spoken
word message” (id. at 16).
We are not persuaded. As noted in our Decision (Dec. 11–12),
Thiessen teaches input “panel 114 interfaces the user or installer with the
system 10, and allows him or her to configure and to operate the system”
(Thiessen 7:43–46; see id. at 4:24–26, 8:5–8; Ans. 15). Indeed, Thiessen
illustrates in Figure 6 a panel that we determine an ordinarily skilled artisan
would understand to be a controller of the apparatus (Thiessen, 7:43–46, Fig.
6). Further, we determine an ordinarily skilled artisan would understand the
panel to detect a touch input, i.e, pressing one of the illustrated buttons (id.).
Appellant has not defined explicitly “touch input” in the Specification.
However, in light of the Specification, we determine the panel illustrated in
Figure 6 and the further description of use of “other suitable user interface
arrangements” teaches the recited controller that detects a touch input.
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Thus, Thiessen’s panel 114 teaches the controller detects touch input.
Thiessen further teaches a “voice/data unit,” which “allow[s] text or voice
messages to be communicated” for monitoring (id. at 3:45–51). Appellant
contends that audible notification does not include an “identity of the
controller” (Reply Br. 4). The Examiner, however, determines an
ordinarily skilled artisan would have found it obvious “to provide an audible
notification representative of an identity of the controller in order to allow
extensive safety measure and to provide a more secure apparatus” (Final
Act. 22).
Appellant further argues Thiessen:
would not provide a spoken word message regarding the nature
of a touch input on a keyboard panel or of any corrective action
taken by the system because touch inputs to a keyboard panel are
not the type of thing that need to be communicated to a property
owner or a building manager
(Appeal Br. 16–17). This argument and Appellant’s argument that a touch
input is not the “type of ‘sensed event’” for which Thiessen would generate
a notification (Appeal Br. 16; Reply Br. 4) do not sufficiently address the
Examiner’s conclusion of obviousness based on the teachings of the
references, particularly Thiessen’s teaching of using of voice/data unit for
remote operation (Thiessen 7:43–53). The Examiner has articulated a
reason that a person of ordinary skill in the art would have provided a
notification of the identity of the controller (Final Act. 20), and we find the
Examiner’s reasoning sufficient to support the conclusion of obviousness
because identifying a controller that is being operated is indeed a type of
monitoring. Appellant has proffered insufficient evidence or argument to
persuade us of error in the Examiner’s finding. Accordingly, Appellant has
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not persuaded us the combination of Volodarsky, Ueda, Noguchi, and
Thiessen teaches or suggests the limitation as recited in claim 12.

Claim 13
Appellant contends the Examiner erred in finding the combination of
Volodarsky, Ueda, and Thiessen teaches “wirelessly receiving from a remote
device a command representative of a change to the operated state,” as
recited in claim 13 (Appeal Br. 17). Specifically, Appellant argues that
although “the word ‘wirelessly’ can be found in Volodarsky and that the
generation of commands can be found in Thiessen, . . . [t]he mere existence
of these two words in two separate references does not constitute a
disclosure, teaching, or suggestion of ‘wirelessly receiving’” (id.).
We are not persuaded. As stated in our previous Decision (Dec. 12),
Volodarsky teaches a “range transmitter unit 50 can be in wireless
communication with the sensor assembly 20” (Volodarsky ¶ 35; Final Act.
23). Furthermore, as the Examiner correctly finds, Thiessen teaches a
“remote device or user interface provides . . . a command that will change
the operating state in accordance with the command” (Final Act. 23 (citing
Thiessen 3:23–31, 4:26–30, 7:43–52); Ans. 16–17). Thiessen also describes
the system “provides relevant information to the owner or other responsible
persons, e.g., via a telephone link” and these selected persons “may carry a
pager or a cellular phone” (Thiessen 2:1–3, 3:45–48). The Examiner applies
Volodarsky’s wireless transmission to Thiessen’s received command
signals, and determines the resulting combination teaches wirelessly
transmitted and, correspondingly, wirelessly received command signals
(Final Act. 23).
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As we previously noted (Dec. 12–13), Appellant’s argument (Appeal
Br. 17) improperly attacks Volodarsky and Thiessen individually when the
rejection is based on a combination of Volodarsky and Thiessen (Keller, 642
F.2d at 426). Thus, Appellant does not persuade us the combination of
Volodarsky and Thiessen fails to teach the disputed limitation. We further
note Appellant’s own Specification fails to provide any details as to how the
system wirelessly receives aside from disclosing that a wireless transceiver
is used, that the wireless transceiver apparatus “may provide wireless
communications that follow, for instance, the IEEE 802.11 protocol” and
that “the wireless transceiver apparatus 42 may additionally provide a wired
output that can be directly wired to the security system” (Spec. ¶¶ 24, 44,
49–52 (emphasis added)). The lack of detail in the Specification persuades
us an ordinarily skilled artisan would understand how to connect two devices
wirelessly. Thus, Appellant has not persuaded us the Examiner erred in
finding the combination of Volodarsky, Ueda, and Thiessen teaches
“wirelessly receiving from a remote device a command representative of a
change to the operated state.”
Appellant additionally argues the Examiner’s motivation – “to send a
command representative of a change to the operated state in order to enable
a user to configure the operation of the system according [to] his/her needs,
to allow extensive safety measures and to provide a more secure apparatus”
(Final Act. 23) – does not have anything to do with wirelessly receiving a
command (Appeal Br. 17). As discussed above, both references describe
wireless communication (see Volodarsky ¶ 35; Thiessen 2:1–3, 3:45–48).
Appellant has not proffered sufficient evidence or argument to persuade us
of error in the Examiner’s articulated reasoning. Both references describe
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wireless communication and the Examiner has articulated why an ordinarily
skilled artisan would have modified Volodarsky to receive from a remote
device a command.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Volodarsky, Ueda, and Thiessen renders obvious “wirelessly
receiving from a remote device a command representative of a change to the
operated state,” as recited in claim 13.

Remaining Dependent Claims
Appellant does not separately argue the remaining dependent claims,
claims 7, 9, and 21, instead relying on the arguments set forth for claims 6,
5, and 14 (Appeal Br. 16–17). For the reasons set forth above, Appellant has
not persuaded us of error in the Examiner’s findings. Accordingly, we are
not persuaded the Examiner erred in finding the combination of Volodarsky,
Ueda, Noguchi, and Thiessen renders obvious claims 7, 9, and 21.

Conclusion
For the reasons set forth above, we sustain the rejection of claims 6, 7,
9, 12, 13, 19, 21, 35, and 36 under 35 U.S.C. § 103(a) for obviousness over
Volodarsky, Ueda, Noguchi, and Thiessen.

35 U.S.C. § 103: Claims 27–29
Appellant contends the combination of Volodarsky, Ueda, Noguchi,
White, and Thiessen, fails to teach the elements recited in claim 27 based on
the arguments set forth with respect to claim 14 (Appeal Br. 19–20).
Similarly, Appellant contends the combination of Volodarsky, Ueda,
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Noguchi, White, and Heilman fails to teach the elements recited in claims 28
and 29 based on the arguments set forth with respect to claim 14 (Appeal Br.
20). For the reasons set forth above, we are not persuaded the Examiner
erred in determining claim 14 would have been obvious over the cited prior
art. Accordingly, we sustain the rejections of claim 27–29 under 35 U.S.C.
§ 103 for obviousness.
CONCLUSION
The Examiner’s rejections are AFFIRMED.
More specifically,
We sustain the Examiner’s rejection under 35 U.S.C. § 103 of claims
1, 3–14, and 16–38 as being obvious.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 8, 10,
11, 14, 18,
20, 22, 23,
32–34, 37,
38
103(a) Volodarsky, Ueda,
Noguchi
1, 5, 8, 10,
11, 14, 18,
20, 22, 23,
32–34, 37,
38

3, 4, 16–17,
24–26, 30,
31
103(a) Volodarsky, Ueda,
Noguchi, White
3, 4, 16–17,
24–26, 30,
31

6, 7, 9, 12,
13, 19, 21,
35, 36
103(a) Volodarsky, Ueda,
Noguchi, Thiessen
6, 7, 9, 12,
13, 19, 21,
35, 36

27 103(a) Volodarsky, Ueda,
Noguchi, White,
Thiessen
27
28, 29 103(a) Volodarsky, Ueda,
Noguchi, White,
Heilman
28, 29
Overall
Outcome
1, 3–14, 16–
38

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED