Ex Parte Arndt et al

Patent Trial and Appeal Board

Jun 17, 2016

12701832 (P.T.A.B. Jun. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121701,832 02/08/2010
24131 7590 06/21/2016
LERNER GREENBERG STEMER LLP
PO BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Georg-Erwin Arndt
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2009P03332 1863
EXAMINER
LE, PHAN
ART UNIT PAPER NUMBER
2651
NOTIFICATION DATE DELIVERY MODE
06/21/2016 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEORG-ERWIN ARNDT
and VOLKER GEBHARDT
Appeal2014-006068
Application 12/701,832
Technology Center 2600
Before JOHNNY A. KUMAR, LINZY T. McCARTNEY, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-7 and 9-11, 2 which are all the claims pending in this application.
We have jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Siemens Medical
Instruments Pte. Ltd. of Singapore (App. Br. 1 ).
2 Claim 8 has been previously canceled.
Appeal2014-006068
Application 12/701,832
STATEMENT OF THE CASE
Introduction
Appellants' invention relates to a hearing apparatus with an active
occlusion reduction unit (Spec. i-f 3). Claim 1 is illustrative of the invention
and reads as follows.
1. A hearing apparatus, comprising:
an active occlusion reduction unit; and
at least one first means configured to reduce an impact
sound formed in an auditory canal of a wearer of the hearing
apparatus by steps of said wearer and/ or effects on said
occlusion reduction unit caused by the impact sound, said first
means being a footfall sound identification unit configured to
identify impact sound caused by footsteps according to detected
footfall sound frequency patterns and further configured:
to reduce an amplification of said active occlusion
reduction unit in case of detected impact sound caused by
footfall, or
to deactivate the occlusion reduction unit in the case of
detected impact sound caused by footfall.
The Examiner's Rejection
Claims 1-7 and 9-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rasmussen (US 2006/0120545 Al, June 8, 2006) in view
of Usher (US 2009/0220096 Al, Sept. 3, 2009) in view of LeBoeuf (US
2008/0146892 Al, June 19, 2008). Final Act. 4--10.
Appeal2014-006068
Application 12/701,832
Appellants' Contentions
Appellants contend the Examiner erred in finding the disclosures of
Rasmussen, Usher, and LeBoeuf teach or suggest the recited features of
claim 1 because:
1. While appellants agree that LeBoeuf may be used as a
pertinent reference, ... LeBoeuf does not teach the use of
'footfall sound frequency patterns,' nor does LeBoeuf teach using
detected footfall sound in an attenuation of a hearing device. Br. 4.
2. The secondary reference [LeBoeuf] enables footfall
impact sounds to be identified. These are utilized, however, for an
entirely different purpose. The footfall sound detection of LeBoeuf is
a "step counting mechanism." The teaching is concerned
with determining a number (and speed) of steps taken by the person.
The step counter, which is either in the form of a mechanical
pedometer or a subprocess in a signal processor, is one of many
monitoring devices for "physiological and environmental factors."
LeBoeuf, Abstract. Br. 5.
3. There is nothing in the prior art teaching that would
suggest using the footstep count in the context of a hearing device
and, specifically, for utilizing the footfall sound determination in a
"reaction," as claimed, of reducing the amplification of an occlusion
reduction unit or even of deactivating the occlusion reduction unit in
the case of detected impact sound caused by footfall. Br. 6.
4. The alleged "obviousness" is not based on the prior art
teachings. It is conclusory and it is based entirely on hindsight.
Furthermore, the assembly that would result from the proffered
Appeal2014-006068
Application 12/701,832
combination, would apparently be a hearing aid in which the footfall
impact sounds are amplified. This, of course, is exactly what the
claimed invention is attempting to avoid. Br. 6.
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 13 by finding
that the combination of Rasmussen, Usher, and LeBoeuf teaches or suggests
the use of footfall sound frequency patterns in an attenuation of a hearing
device (Br. 4).
ANALYSIS
We have reviewed the Examiner's rejections in light of the evidence
presented andAppellants' arguments that the Examiner has erred. We
disagree with Appellants' conclusions. We adopt as our own the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and the reasons set forth by the Examiner in the Examiner's Answer in
response to Appellants' Appeal Brief.
In rejecting claim 1, the Examiner relied on Rasmussen as disclosing a
hearing apparatus with an active occlusion reduction unit (Final Act. 4). The
Examiner further relied on Usher as disclosing reducing an amplification of
the active occlusion reduction unit in case of detected impact sound (Final
Act. 5; Ans. 5) and on LeBoeuf as disclosing a footfall sound identification
unit (Final Act. 5; Ans. 3--4). The Examiner concluded that it would have
been obvious to one of ordinary skill in the art to combine the footfall sound
identification unit of LeBoeuf with the active occlusion reduction unit of
3 Separate patentability is not argued for the remaining claims.
Appeal2014-006068
Application 12/701,832
Rasmussen and the occlusion reduction control of Usher (Final Act. 5---6;
Ans. 5---6).
The Examiner finds that Rasmussen teaches the limitations "an active
occlusion reduction unit; and at least one first means configured to reduce an
impact sound formed in an auditory canal of a wearer of the hearing
apparatus by steps of said wearer and/ or effects on said occlusion reduction
unit caused by the impact sound" (Final Act. 4), and Usher teaches reducing
an amplification of the active occlusion reduction in the user's ear (Final
Act. 5; Ans. 5 (citing Usher i-fi-19 and 13)). Specifically, we note in
paragraph 7, Usher teaches that the gain of ambient sound within an
occluded ear canal may be adjusted so as to "decrease a reproduction gain of
the ambient sound in the occluded ear canal." Appellants do not contest this
finding. Therefore, we accept the Examiner's findings as our own and agree
with the Examiner that reducing an impact sound through the use of an
active occlusion unit is taught by the combination of Rasmussen and Usher.
The Examiner further finds that the claim limitation "a footfall sound
identification unit configured to identify impact sound caused by footsteps
according to detected footfall sound frequency patterns" is met by LeBoeuf
in paragraph 160 that teaches "digitized electrical signals from footstep
sounds from outside the body are compared with digitized electrical signals
from footstep sounds traveling through the body" (Ans. 3--4).
Appellants contend that LeBoeuf does not teach the use of "footfall
sound frequency patterns" or "using detected footfall sound in an attenuation
of a hearing device" (Br. 4). However, we agree with the Examiner that the
use of footfall sound frequency patterns taught by LeBoeuf for a different
purpose of obtaining a cleaner footstep signal (Ans. 4), does not preclude its
Appeal2014-006068
Application 12/701,832
use in a hearing aid device. Specifically, the Examiner cites paragraph 160
of LeBoeuf that "[t]he sounds generated from footsteps can be detected and
analyzed with a signal processor using a noise cancellation or signal
extraction approach to identify footstep sounds in the midst of convoluting
physiological noise" (Ans. 4). Thus, a combination of Rasmussen and Usher
teaches using such a signal for reducing impact sounds in an active
occlusion reduction unit. Id.
We agree with the Examiner (Ans. 5), because if the electrical signals
from footstep sounds are digitized, it would have been obvious to apply
these digitized signals, treated as a form of ambient sound, measured from
the ambient sound microphone of Usher at an entrance to an occluded ear
canal, to cause the hearing system to react so as to "decrease a reproduction
gain of the ambient sound in the occluded ear canal" (Usher i-f 7). Thus, the
combination of Rasmussen, Usher, and LeBoeuf teaches the claim
limitations of "at least one first means configured to reduce an impact sound
formed in an auditory canal ... by steps of said wearer ... said first means
being a footfall sound identification unit" and "to reduce an amplification of
said active occlusion reduction unit in case of detected impact sound caused
by footfall."
Appellants also argue that such a combination is based on hindsight
(Br. 6) because it is based on the specification of the instant application (Br.
7), and that the Examiner has failed to make a case of prima facie
obviousness (Br. 8), because "the prior art of record does not fairly suggest
the frequency pattern-based (i.e., spectral) identification of footfall sound
and the changes in the operation of an occlusion reduction unit." Id. at 7-8.
We disagree with Appellants.
Appeal2014-006068
Application 12/701,832
We also agree with the Examiner that the proposed combination is
based on the teachings of the applied references, and not based on hindsight
reconstruction. In KSR Int 'l v. Teleflex, Inc., the Supreme Court stated that
"[a] factfinder should be aware, of course, of the distortion caused by
hindsight bias and must be cautious of arguments reliant upon ex post
reasoning." KSR Int 'l v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (citing
Graham v. John Deere Co., 383 U.S. 1, 36 (1966)). Nevertheless, the Court
also qualified the issue of hindsight by stating that "[r]igid preventative rules
that deny factfinders recourse to common sense, however, are neither
necessary under our case law nor consistent with it." Id. at 421. Cognizant
of this precedent and contrary to Appellants' contentions (Br. 6-8), we are
satisfied that the Examiner's proposed combination of Rasmussen, Usher,
and LeBoeuf involves nothing other than combining prior art elements that
perform their ordinary functions to predictably result in the claimed method
(see Ans. 3--4). In other words, we agree with the Examiner that LeBoeuf
teaches a detection of sound frequency patterns for footfall and Usher's
mechanism of decreasing gain of ambient sounds may be applied to those of
a footfall for the purpose of improving the hearing aid. (Ans. 3---6). We,
therefore, find that the Examiner has articulated how the claimed features
are met by the reference teachings with some rational underpinning to
combine the teachings of Rasmussen, Usher, and LeBoeuf. See KSR, 550
U.S. at 418.
For the above reasons, the Examiner's 35 U.S.C. § 103(a) rejection of
claims 1-7 and 9-11 is sustained.
Appeal2014-006068
Application 12/701,832
DECISION
The Examiner's decision rejecting claims 1-7 and 9-11 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED