10441725 (B.P.A.I. Dec. 9, 2010)

Ex Parte Allen et al

Board of Patent Appeals and InterferencesDec 9, 2010

10441725 (B.P.A.I. Dec. 9, 2010)

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. 10/441,725 05/19/2003 Justin L. Allen 10205.040 4964 7590 12/10/2010 Paul F. Wille 6407 East Clinton St. Scottsdale, AZ 85254 EXAMINER JAMAL, ALEXANDER ART UNIT PAPER NUMBER 2614 MAIL DATE DELIVERY MODE 12/10/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES _____________ Ex parte JUSTIN L. ALLEN, FRANKLYN H. STORY, and SETH SUPPAPPOLA _____________ Appeal 2009-007908 Application 10/441,725 Technology Center 2600 ______________ Before, ROBERT E. NAPPI, CARL W. WHITEHEAD, JR., and BRADLEY W. BAUMEISTER, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL1 1The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007908 Application 10/441,725 This is a decision on appeal under 35 U.S.C. § 134(a) of the final rejection of claims 1-10 and 15-19.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm the Examiner’s rejection of these claims. INVENTION The invention is directed to an apparatus that controls noise reduction and echo cancellation through the use of voice activity detectors coupled to sub-band filters. See Spec: 1-7. Claim 1 is representative of the invention and reproduced below: 1. In a telephone including noise reduction circuitry having a plurality of sub-band filters in at least one channel, the improvement comprising: a plurality of voice activity detectors coupled one to each sub-band filter. REFERENCES Vähätalo US 5,963,901 Oct. 5, 1999 Reilly US 6,522,747 B1 Feb. 18, 2003 Mikesell US 6,990,194 B2 Jan. 24, 2006 (filed May 19, 2003) REJECTIONS AT ISSUE Claims 1-10 and 15-19 are rejected under the judicially created doctrine of obviousness-type double patenting. Ans. 3-4. 2 Claims 11-14 were previously cancelled. 2 Appeal 2009-007908 Application 10/441,725 Claims 1-2, 15, and 19 are rejected under 35 U.S.C. § 102(e) as being anticipated by Reilly. Ans. 4-6. Claims 3-10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Reilly in view of Vähätalo. Ans 6-8. ISSUES Double Patenting Rejection Appellants argue on pages 6-9 of the Appeal Brief that the Examiner’s rejection of claims 1-10 and 15-19 under the judicially created doctrine of obviousness-type double patenting is in error. Appellants argue that the Examiner improperly performed the double patenting analysis. App. Br. 6. Thus, with respect to claims 1-10 and 15-19, Appellants’ contention presents us with the issue: Did the Examiner err in rejecting the claims under obviousness-type double patenting? 35 U.S.C. § 102(e) rejections Appellants argue on pages 9-10 of the Appeal Brief that the Examiner’s rejection of claims 1, 2, 15, and 19 is in error. Appellants argue that Reilly does not disclose a voice activity detector (VAD). App. Br. 9. Appellants additionally argue that Reilly does not disclose a broad band voice detector. App. Br. 10. Thus, with respect to claims 1, 2, 15, and 19, Appellants’ contentions present us with two issues. (1) Did the Examiner err in finding that Reilly discloses a voice activity detector? (2) Did the Examiner err in finding that Reilly discloses a broad band voice detector? 3 Appeal 2009-007908 Application 10/441,725 35 U.S.C. § 103(a) rejections Appellants argue on page 10 of the Appeal Brief that the Examiner’s rejection of claims 3-10 is in error. Appellants argue that there is no reason to combine Vähätalo with Reilly. App. Br. 10. Thus, with respect to claims 3-10, Appellants’ contention presents us with the issue: Did the Examiner err in combining Vähätalo with Reilly? ANALYSIS Double Patenting Rejection Appellants’ arguments have not persuaded us that the Examiner erred in rejecting claims 1-10 and 15-19 under obviousness-type double patenting. Appellants argue that the Examiner did not properly examine the claim of the patent against the claim of the current application. App. Br. 6. Appellants argue that claim 1 of the application is not an obvious variation over claim 1 of the patent. App. Br. 8. We disagree. “[I]f the scope of the application and the patent claims is not identical, the court must ask whether the former defines merely an obvious variation of the latter.” In re Berg, 140 F.3d 1428, 1432 (Fed. Cir. 1998). “A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d 887, 896 (Fed. Cir. 1985) (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents).” Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed. Cir. 2001). The Examiner finds, and we agree, that claim 1 of the patent contains all of the limitations of claim 1 of the instant application. 4 Appeal 2009-007908 Application 10/441,725 Ans. 4. As such, claim 1 of the patent anticipates claim 1 of the present application. Therefore, claim 1 of the present application is not patently distinct from claim 1 of the patent. Appellants additionally argue that double patenting is improper since the patent and the application were both filed on the same day. App. Br. 8. As such, the resulting patents would have expired on the same day. App. Br. 8. While we agree that non-statutory double patenting is primarily intended to prevent the prolongation of a patent term (MPEP § 804), we do not agree that two applications filed on the same day would necessarily expire on the same day. Patent term adjustments under 35 U.S.C. § 154 or 37 C.F.R. §§ 1.702 and 1.703 could prolong the patent terms of the resulting patents. Additionally, in order to overcome the obviousness double patenting rejection, Appellants could have filed a terminal disclaimer according to 37 C.F.R. § 1.321. The terminal disclaimer would allow the latter patent to be enforceable only for and during the period that the patent is commonly owned with the earlier patent, as is currently the case with this application. MPEP § 706.02(m). Thus, we are not persuaded by Appellants’ argument. Lastly, Appellants argue that double patenting is improper since the respective entities differ, and therefore, the present Applicants were legally barred from filing the present claims in the other application. App. Br. 8-9. We disagree. The patent and the application contain at least one common inventor, and they also contain a common assignee. We do not see why the present claims could not have been combined in the application submitted with the application that was patented. Thus, we are not persuaded by Appellants’ argument. 5 Appeal 2009-007908 Application 10/441,725 For the reasons stated above, the obviousness-type double patenting rejection is appropriate. 35 U.S.C. § 102(e) rejections Appellants’ arguments have not persuaded us of error in the Examiner’s rejection of claims 1, 2, 15, and 19. We select claim 1 as representative of the group comprising claims 2, 15, and 19, since Appellants do not separately argue these claims with particularity. See 37 C.F.R. § 41.37(c)(1)(vii). Claim 1 requires voice activity detectors (VAD) coupled to sub-band filters. The Examiner finds that double talk detectors are voice activity detectors and, therefore, Reilly discloses this limitation. Ans. 5. However, Appellants argue that since Reilly shows VADs feeding a double talk detector that the devices are not the same. App. Br. 9. Appellants additionally argue that the citation from the Marchok reference, used only by the Examiner to show that it was known in the art that double talk detectors and VADs are the same, says that the devices are different. We disagree. As noted by Appellants (App. Br. 9), Marchok, in paragraph [0009], states “The echo canceller’s double talk detector (DTD) is another form of VAD.” This clearly discloses that a DTD is a VAD, but a VAD is not necessarily a DTD. Thus, the Examiner’s finding that a DTD is a VAD is supported by objective evidence and Appellants’ argument is not persuasive. Additionally, Appellants argue that there is no disclosure of broad band voice detection. App. Br. 10. However, these arguments are not persuasive since they are not commensurate with the scope of representative claim 1. 6 Appeal 2009-007908 Application 10/441,725 For the reasons shown above, Appellants’ arguments are not persuasive. Accordingly, we sustain the Examiner’s rejection of claim 1 and claims 2, 15, and 19 that have been grouped with claim 1. 35 U.S.C. § 103(a) rejections Appellants’ arguments have not persuaded us of error in the Examiner’s rejection of claims 3-10. Appellants argue that there is no basis to combine Vähätalo with Reilly. App. Br. 10. However, the Examiner finds that it would have been obvious to combine Vähätalo with Reilly “in order to use the VAD in echo cancellation and noise cancellation.” Ans. 7 (quoting Vähätalo, col. 1, ll. 20-22). Appellants’ arguments do not address these specific findings by the Examiner. Thus, we sustain the Examiner’s rejection as Appellants’ arguments have not identified an error in the finding supporting the rejection. CONCLUSION The Examiner did not err in issuing an obviousness-type double patenting rejection. The Examiner did not err in finding that Reilly discloses a voice activity detector. The Examiner did not err in finding that Reilly discloses a broad band voice detector. The Examiner did not err in combining Vähätalo with Reilly. SUMMARY The Examiner’s decision to reject claims 1-10 and 15-19 is affirmed. 7 Appeal 2009-007908 Application 10/441,725 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). AFFIRMED ELD PAUL F. WILLE 6407 EAST CLINTON ST. SCOTTSDALE, AZ 85254 8