Cochlear Limited

Patent Trials and Appeals Board

Sep 1, 2021

2020002921 (P.T.A.B. Sep. 1, 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.
15/158,333 05/18/2016 Martin Evert Gustaf Hillbratt 3065.0483C 3205
110239 7590 09/01/2021
Edell Shapiro & Finnan LLC
9801 Washingtonian Blvd., Suite 750
Gaithersburg, MD 20878
EXAMINER
LEE, PING
ART UNIT PAPER NUMBER
2654
NOTIFICATION DATE DELIVERY MODE
09/01/2021 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):
epatent@usiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN EVERT GUSTAF HILLBRATT
Appeal 2020-002921
Application 15/158,333
Technology Center 2600
Before MIRIAM L. QUINN, GREGG I. ANDERSON, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Cochlear Limited.
Appeal Br. 3.
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STATEMENT OF THE CASE
Introduction
The Application is directed to “performing fitting of an auditory
prosthesis using tactile responses.” Spec. ¶ 5. Claims 1, 2, 4–12, and 14–20
are pending; claims 1 and 9 are independent. Appeal Br. 35–41. Claim 1 is
reproduced below for reference (emphasis added):
1. A method comprising:
identifying a test signal using a feedback device;[2]
in response to identifying the test signal using the feedback
device, starting monitoring, by the feedback device, a physical
displacement of the feedback device through space;[3]
determining the physical displacement of the feedback
device; and
determining an adjustment to at least one parameter of an
auditory prosthesis based upon the physical displacement.
References and Rejections4
Claims 1 and 4–6 are rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by Edgar (US 2011/0044483 A1; Feb. 24, 2011). Final Act. 4.
Claims 1, 4, and 6 are rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by Kinsbergen (US 2015/0256942 A1; Sept 10, 2015). Final
Act. 6.
Claims 7 and 8 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kinsbergen. Final Act. 9.

2 We refer to this clause as the “identifying limitation.”
3 We refer to this clause as the “in response to limitation.”
4 The Examiner withdraws the following rejections: the written description
rejection of claims 9–12 and 14–20, the anticipation rejection of claim 2, and
the obviousness rejection of claim 5. Claim 2 is thus pending but does not
currently stand rejected.
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Claims 9–12 and 14–18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kinsbergen and Kwon (US 2015/0010177 A1; Jan. 8,
2015). Final Act. 11.
Claims 19 and 20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kinsbergen, Kwon, and Sudo (US 2015/0043748 A1; Feb.
12, 2015). Final Act. 12.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant that the Examiner erred and adopt as our
own the findings and reasons set forth by the Examiner, to the extent
consistent with our analysis below. We add the following primarily for
emphasis.

Anticipation in view of Edgar
Appellant first argues that the Examiner’s rejection of claim 1 in view
of Edgar is in error, because “Edgar does not disclose or suggest identifying
a test signal using a feedback device.” Appeal Br. 22. Appellant contends
“Edgar merely generally describes that gestures are used to provide input to
the system regardless of whether a test signal was recently played,” such that
“even if gestures were performed in response to a test signal, Edgar does not
disclose actually identifying a test [signal] based thereon.” Id. at 21.
We are not persuaded Edgar fails to anticipate the broadest reasonable
construction of the identifying limitation. Appellant’s Specification explains
that the method “begins at operation 202 where a test signal is identified,”
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and such “detecting the test signal can include receiving an indication of the
test signal.” Spec. ¶ 22. Particularly, the Specification provides that “the
test signal can be detected via input received from the user via an interface,”
as “the input indicating the test signal can be a predetermined physical
manipulation.” Id. Accordingly, we find the claimed identifying
limitation—in light of the Specification—includes the user detecting (e.g.
hearing) a test signal and indicating as such to the feedback device.
Consistent with the Specification, we agree with the Examiner that the
identifying limitation is disclosed by Edgar’s use of a “feedback device that
provides a feedback signal to the computer.” Ans. 3; Edgar ¶ 10 (“[A] series
of physical movements and gestures that an audiologist or patient can make
to assist in a [hearing aid] fitting . . . . are detected and outcomes in the
fitting software are realized depending on the particular gesture used”). As
correctly noted by the Examiner, without this use of the feedback device,
Edgar’s “computer would not be able to identify the status of the test
signal.” Ans. 3. Thus, Edgar’s system will inherently identify a test signal
using a feedback device, as claimed. See Edgar ¶ 12 (“The fitting software
can perform many functions when the gesture triggers.”).
Appellant also argues “there is no indication that Edgar discloses the
claim’s further recitation of” the in response to limitation. Appeal Br. 22.
Appellant explains that “Edgar’s monitoring of movement does not start in
response to identifying the test signal - it starts when the device is turned
on,” because “to detect that movement, monitoring must have already been
started prior to the occurrence of the test signal.” Appeal Br. 22, 23.
We find Appellant’s arguments are not commensurate with the scope
of claim 1. Particularly, claim 1 recites starting monitoring “a physical
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displacement.” Appeal Br. 35 (emphasis added). That is, the claim does not
state all movement is monitored only in response to the identifying step;
rather, a displacement (among other displacements) is started to be
monitored. Similarly, the “in response to” recitation merely requires the
identifying step to precede the starting monitoring step. See Spec. ¶ 27 (“in
response to generating the test signal, data representing a physical
manipulation is received.”). Thus, we are not persuaded the Examiner errs
by determining that “[t]he claimed ‘starting monitoring’ reads on starting
monitoring, by the computer, the particular movement at the time instance
the movement has started in order to understand what the particular
movement is.” Ans. 4–5 (emphasis added).
We see no error in the Examiner’s finding that Edgar discloses the in
response to limitation. The Examiner correctly determines “[t]he device in
Edgar might have already been turned on during the entire fitting process;
however, the device in Edgar starts monitoring a particular movement and a
particular displacement when the [device] provides a signal to the computer
indicating the start of the particular movement/displacement.” Ans. 5; Edgar
¶ 11 (“[T]he specific gestures are intuitive extensions of typical responses by
individuals.”) ¶¶ 21 (“Gestures for Louder/Softer.”), ¶ 22 (“Gesture to cycle
to next/previous adjustment.”). In order to track the gestures, it is reasonable
to conclude, as the Examiner did, that Edgar’s system starts monitoring the
gesture as a test signal is identified. See Edgar ¶ 9, 12; Final Act. 4.
Therefore, Edgar discloses the disputed limitation.
Accordingly, we are not persuaded the Examiner errs in finding Edgar
anticipates the limitations of claim 1.
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Anticipation in view of Kinsbergen
Appellant argues the Examiner’s rejection of claim 1 in view of
Kinsbergen is in error, because the cited reference fails to disclose either the
identifying limitation (see Appeal Br. 24) or the in response to limitation
(see Appeal Br. 26). Appellant contends that, although Kinsbergen
“describe that sensors can generally be used, there is no showing that the
user having a particular movement is used to identify that the test signal was
received by the user” (Appeal Br. 25) and “[b]ecause Kinsbergen’s
monitoring was already started before movement by the user (which the
Office Action contended corresponds to the identification of the test signal),
Kinsbergen cannot be said to disclose starting monitoring in response to
identifying the test signal, let alone the entire recitation as claimed” (Appeal
Br. 27).
We are not persuaded of Examiner error. We apply the same claim
construction for the disputed limitations as discussed above with respect to
Edgar. We find that, similar to Edgar, Kinsbergen discloses the identifying
limitation because Kinsbergen’s user will gesture to indicate a sound is
heard.5 See Kinsbergen ¶ 97 (“The system can also present a series of
stimuli such as narrow band noise signals,” and “[t]he user then uses
gestures to indicate if the sound is too soft, to loud, . . . etc.”); Ans. 5, 6. In
response, Kinsbergen will then start monitoring a physical displacement of
the device. See Kinsbergen ¶ 72 (“The sensor based hearing aid fitting.”);

5 We note Kinsbergen further describes the system can “receive a description
of the current listening situation,” which will identify the test signal.
Kinsbergen ¶ 94; Final Act. 7; see also Kinsbergen ¶ 82 (“[I]nformation
from sensors is applied in a so called situation analysis module to include the
context of the actual listening situation in a situation analysis”).
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¶ 84 (“The signals from these sensors need to be fed into algorithms able to
infer the current position and orientation of the device, with respect to a start
position.”). As correctly noted by the Examiner, “[t]he measured movement
is in response to the user identifying a testing signal. When there is no
movement from the user, there is no monitoring of a particular movement,
such as lifting up.” Final Act. 20.6 For at least these reasons, we do not find
the Examiner errs in determining Kinsbergen anticipates the identifying and
in response to limitations of claim 1.
Kinsbergen additionally discloses an embodiment for “continuous
fitting,” which “differentiate[s] between an absolute translation of the device
in space and a relative displacement of the device with respect to the user”
using “algorithms that analyse sensor data.” Kinsbergen ¶ 104. In this
embodiment, a user can identify a test signal using a feedback device by
placing their “smartphone on the table” during a meeting. Id. ¶ 111. In
response to identifying the test signal using the feedback device, Kinsbergen
starts monitoring, by the feedback device, a physical displacement of the
feedback device through space, because Kinsbergen discloses “the user can
rotate the phone horizontally, for instance clockwise” or “counter-
clockwise” to adjust the hearing aid parameters. Id. Accordingly, we also
agree with the Examiner that this embodiment of Kinsbergen anticipates the
limitations of claim 1. See Final Act. 7.

6 Separately, we note Kinsbergen further describes that “[t]he self-fitting
system next presents a new stimulus and the selection of the new stimulus is
based on the user’s feedback.” Kinsbergen ¶ 97. Thus, Kinsbergen further
discloses starting monitoring (for the new stimulus) in response to
identifying a test signal (the user’s feedback), within the meaning of the
claim.
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CONCLUSION
We sustain the Examiner’s anticipation rejections of claim 1.
Appellant does not present separate substantive arguments for the remaining
rejected claims. See Appeal Br. 29 and 31–33. Thus, we sustain the
Examiner’s anticipation and obviousness rejection of claims 1, 4–12, and
14–20.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4–6 102(a)(1) Edgar 1, 4–6
1, 4, 6 102(a)(1) Kinsbergen 1, 4, 6
7, 8 103 Kinsbergen 7, 8
9–12, 14–
18
103 Kinsbergen, Kwon 9–12, 14–
18

19, 20 103 Kinsbergen, Kwon,
Sudo
19, 20
Overall
Outcome
1, 4–12,
14–20

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