Ex Parte Foo et al

Patent Trial and Appeal Board

Sep 14, 2016

13009751 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/009,751 01119/2011 Edwin W. Foo
45217 7590 09/14/2016
APPLE INC./BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN LLP
1279 OAKMEAD PARKWAY
SUNNYVALE, CA 94085-4040
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.
4860Pl0064 1347
EXAMINER
LE, PHAN
ART UNIT PAPER NUMBER
2651
MAILDATE DELIVERY MODE
09/14/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte EDWIN W. FOO and GREGORY F. HUGHES
Appeal2015-000264
Application 13/009,751
Technology Center 2600
Before CAROLYN D. THOMAS, KARA L. SZPONDOWSKI, and
SHARON PENICK, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-31. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
Appeal2015-000264
Application 13/009,751
STATEMENT OF THE CASE
Appellants' invention is directed to providing a real time update to a
hearing aid profile. (Spec. i-f 1.) Claims 1 and 9, reproduced below, are
exemplary of the claimed subject matter:
1. A method for updating a hearing aid profile stored in a
hearing aid, comprising:
establishing a data link between the hearing aid and a
hearing aid profile service;
transmitting a hearing aid profile update request to the
hearing aid profile service;
receiving an updated hearing aid profile from the hearing
aid profile service at the hearing aid, wherein the updated
hearing aid profile is customized and generated by the hearing
aid profile service responsive to the hearing aid profile update
request;
processing audio received at the hearing aid in
accordance with the updated hearing aid profile;
evaluating the processed audio;
transmitting an evaluation of the updated hearing aid
profile to the hearing aid profile service when the updated
hearing aid profile is unacceptable; and
saving the updated hearing aid profile at the hearing aid
when the evaluation is acceptable;
wherein the hearing aid profile service is located at a
remote location relative to the hearing aid.
9. A method for generating an updated hearing aid profile
used by a hearing aid to process sound, by a hearing aid profile
service, compnsmg:
receiving a hearing aid profile update request;
receiving an audio sample, the audio sample comprising
sound recorded by the hearing aid, the audio sample including
meta-data indicating a target audio component;
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generating the updated hearing aid profile in accordance
with the audio sample and the meta data, wherein the updated
hearing aid profile is customized and generated by the hearing
aid profile service responsive to the hearing aid profile update
request;
sending the updated hearing aid profile to the hearing aid;
and
receiving an evaluation of the updated hearing aid profile
if the updated hearing aid profile is not accepted;
wherein the hearing aid profile service is located at a
remote location relative to the hearing aid.
REJECTIONS
Claims 1-3, 8, 9, 13, 14, 19, 20, and 24--31 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of
Waldmann (WO 2008/071231 Al; published June 19, 2008) and Hanley et
al. (US 2011/0245235 Al; published Oct. 6, 2011).
Claims 4--7; 10-12; 15-18; and 21-23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Waldmann, Hanley,
and Apfel et al. (US 2011/017 6697 A 1; published July 21, 2011 ).
ANALYSIS
Claim 1
Issue 1: Did the Examiner err in finding the combination of
Waldmann and Hanley teaches or suggests
receiving an updated hearing aid profile from the hearing aid
profile service at the hearing aid, wherein the updated hearing
aid profile is customized and generated by the hearing aid
profile service responsive to the hearing aid profile update
request; processing audio received at the hearing aid in
accordance with the updated hearing aid profile; [and] ...
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transmitting an evaluation of the updated hearing aid profile to
the hearing aid profile service when the updated hearing aid
profile is unacceptable,
as recited in independent claim 1?
After considering each of Appellants' arguments (App. Br. 12-23;
Reply Br. 2-8), we agree with the Examiner. We refer to and adopt the
Examiner's findings and conclusions as set forth in the Examiner's Answer
and in the action from which this appeal was taken. (Ans. 3---6; Final Act. 2-
5). Our discussion will be limited to the following points of emphasis.
Many of Appellants' arguments are either not directly responsive to
the Examiner's rejections or address the Waldmann and/or Hanley
referemces in isolation, and therefore, are not persuasive. (App. Br. 13-19.)
Nonobviousness "cannot be established by attacking references
individually" when the rejection is predicated upon a combination of prior
art disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citation omitted).
For example, Appellants make several arguments regarding the
disclosure in paragraph 144 of Hanley. (App. Br. 13-15.) The Examiner
relies on paragraph 144 of Hanley to teach or suggest the limitation
"transmitting an evaluation of the updated hearing aid profile to the hearing
aid profile service when the updated hearing aid profile is unacceptable."
(Final Act. 3.) Paragraph 144 describes that a user can provide a response
indicating whether a first or second profile is better or worse. Based on that
response, the system can identify one of a plurality of profiles that satisfies
the needs of the user. (Hanley i-f 144.) The Examiner finds, as combined
with Waldmann, providing such a response teaches transmitting an
evaluation of the updated hearing profile. (Final Act. 3.)
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With respect to the "receiving an updated hearing aid profile from the
hearing aid profile service ... "limitation, Appellants argue "the examiner is
considering the multiple profiles of Hanley in paragraph [O 144] as the
updated profile." (App. Br. 18-19.) However, the Examiner does not rely
on paragraph 144 of Hanley to teach this limitation. Rather, the Examiner
relies on Waldmann. (Final Act. 2 (citing Waldmann, 14, 11. 26-27; 24, 11.
6-15).) Appellants also contend paragraph 144 of Hanley "does not process
audio received at the hearing aid in accordance with the updated hearing aid
profile." (App. Br. 14 (citing Hanley i-f 144).) However, the Examiner relies
on Waldmann to teach or suggest the "processing audio received at the
hearing aid in accordance with the updated hearing aid profile" limitation.
(Final Act. 2 (citing Waldmann 21, 1. 15-22, 1. 4).) In the Answer, the
Examiner points to paragraph 12 of Hanley, and its description of a hearing
aid comprising a processor, in addressing the processing of audio in
accordance with an updated profile. (Ans. 5---6.) However, the Examiner
does not rely on paragraph 144 of Hanley, as argued by Appellants, to teach
or suggest this limitation. Therefore, Appellants' arguments do not
persuasively address the Examiner's specific findings.
Appellants also argue in paragraph 144 "Hanley's profiles are not
generated ... [but] are pre-determined and pregenerated." (App. Br. 14--15
(emphasis omitted).) However, the Examiner relies on paragraph 123 of
Hanley to teach "wherein the updated hearing aid profile is customized and
generated by the hearing aid profile service responsive to the hearing aid
profile update request." (Final Act. 3.) Specifically, the Examiner relies on
the described customized tinnitus rehabilitation. (Final Act. 3 (citing Hanley
i-f 123).) In the Answer, the Examiner finds Waldmann also teaches the
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hearing aid profile is generated responsive to the hearing aid profile request.
(Ans. 4.) Appellants argue the updated hearing aid profile is not generated
by the hearing aid profile service in Waldmann because in Waldmann, the
data conversion occurs within the hearing aid itself, which is not the hearing
aid profile service. (Reply Br. 5---6.) We are not persuaded by this argument
because, as cited by the Examiner (Final Act. 2), Waldmann teaches an
embodiment where the data conversion does not occur in the hearing aid.
(Waldmann 24, 11. 6-15, Fig. 4.) Therefore, Appellants' arguments do not
persuasively address the combination as relied upon by the Examiner.
With regard to the Examiner's reliance on paragraph 123 of Hanley,
Appellants assert Hanley "only discloses providing customized music[.]"
(App. Br. 15.) However, as described supra, the Examiner relies on Hanley
to teach the customization and Waldmann to teach the updated hearing aid
profile. (Final Act. 2-3.) Appellants' arguments, therefore, do not
persuasively address the combination as set forth by the Examiner.
Appellants also argue the embodiments disclosed in paragraphs 123
and 144 of Hanley cannot be combined. (App. Br. 16-17.) Specifically,
Appellants contend the Examiner has made the presumption that the
embodiment in paragraph 123 includes an audiologist. (App. Br. 16.)
Appellants argue there is no need for an audiologist in the embodiment
described in paragraph 144. (App. Br. 15-16.) Therefore, according to
Appellants, a person of ordinary skill in the art would have no motivation to
combine the embodiments. (App. Br. 16.)
We are not persuaded by Appellants' arguments. The Examiner relies
on paragraph 123 for the customization and paragraph 144 for the user's
response (evaluation) of the profile. (Final Act. 3.) We do not see any
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indication that the Examiner made the presumption that the embodiment in
paragraph 123 requires an audiologist, or that the Examiner relied on that
portion of the disclosure. The claim merely requires the profile is
customized by a "hearing aid profile service," not an audiologist. We note
Appellants do not explicitly define the "hearing aid profile service" in the
Specification, nor do Appellants offer a definition in the Briefs. Moreover,
paragraph 145 of Hanley describes that "the audiogram, audiogram
approximation, and/or predetermined profile [such as the profile described in
paragraph 123] could be generated independent of the device (e.g., clinic or
at a commercial location)." Based on such disclosure, we are not persuaded
one of ordinary skill in the art would not be motivated to combine the
embodiments so that a user could provide a response or evaluation of a
customized profile to a hearing aid profile service. See Boston Scientific
Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 2009)
("Combining two embodiments disclosed adjacent to each other in a prior art
patent does not require a leap of inventiveness.").
For similar reasons, Appellants argue the Examiner cannot rely on
paragraph 144 of Hanley to teach "transmitting an evaluation of the updated
hearing aid profile to the hearing aid profile service when the updated
hearing aid profile is unacceptable." (App. Br. 17-18 (emphasis omitted).)
Specifically, Appellants argue "a person of ordinary skill in the art would
have no motivation or desire to transmit an evaluation to a profile service;
rather, such an evaluation would be given by the user directly to the
audiologist[.]" (Id.) For the same reasons as above, we are not persuaded
by this argument.
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Finally, we are not persuaded by Appellants' argument that
Waldmann' s fitting parameters do not teach or suggest a hearing aid profile.
(Reply Br. 5.) We note Appellants' Specification does not explicitly define
a "hearing aid profile," nor do Appellants provide a definition in the Briefs.
Waldmann describes that its fitting parameters "can be adjusted to the
preferences of a user." (Waldmann 2, 11. 3-23.) We agree with the
Examiner that under the broadest reasonable interpretation in light of the
Specification, such fitting parameters teach or suggest a hearing aid profile.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Waldmann and Hanley teaches or suggests
receiving an updated hearing aid profile from the hearing aid
profile service at the hearing aid, wherein the updated hearing
aid profile is customized and generated by the hearing aid
profile service responsive to the hearing aid profile update
request; processing audio received at the hearing aid in
accordance with the updated hearing aid profile; [and] ...
transmitting an evaluation of the updated hearing aid profile to
the hearing aid profile service when the updated hearing aid
profile is unacceptable.
Issue 2: Did the Examiner improperly use hindsight in combining
Waldmann and Hanley?
Appellants contend "the examiner has relied on speculation,
unfounded presumption or hindsight reconstruction to render the claims
obvious." (App. Br. 20.) Specifically, Appellants contend the "evaluation
or transmission of an evaluation is not disclosed by the combined art, and
... there is no motivation to transmit such an evaluation either." (App. Br.
23.)
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We are not persuaded by Appellants' arguments. Here, as described
supra, the Examiner's reasoning is supported by the references themselves
and not hindsight. Further, Appellants do not inform us of any error in the
Examiner's express reason to combine Waldmann and Hanley.
We, therefore, sustain the Examiner's rejection of independent claim
1, independent claims 14 and 19, which recite substantially similar
limitations, and dependent claims 2, 3, 15-18, 20, 24, 25, and 28-31, which
were not separately argued. For the same reasons, we sustain the
Examiner's rejection of dependent claims 4 and 21, for which Appellants
presented substantially the same arguments. (See App. Br. 32).
Claim 9
Issue 3: Did the Examiner err in finding the combination of
Waldmann and Hanley teaches or suggests "the audio sample comprising
sound recorded by the hearing aid, the audio sample including meta-data
indicating a target audio component," as recited in independent claim 9?
Appellants contend Waldmann's fitting parameters pertain to the
originating audio component, not the "target audio component," as claimed.
(Reply Br. 9-10.) We agree with Appellants.
The Examiner relies on Waldmann to teach or suggest the "meta-data
indicating a target audio component." (Ans. 6 (emphasis omitted).)
Waldmann states:
In one embodiment, said first data are complemented with data,
which relate to at least one of
at least one fitting parameter of said first hearing
device;
said first hearing device, in particular the make
and/or the type of said first hearing device;
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said first user, in particular a hearing loss of said
first user;
an individual having adjusted said first hearing
device to the preferences of said first user.
Such data can be referred to as data representing meta-
information and will be referred to as complementing data.
(Waldmann 9, 11. 15-26.) The Examiner finds: "A person with ordinary
skill in the art would understand that the data of audio sample as a fitting
parameter of Waldmann is indeed a target audio component, and the
adjustment of it would be consider generating the updated profile in
accordance with the meta-data." (Ans. 6.) While we agree with the
Examiner that Waldmann teaches metadata associated with the fitting
parameter data, we do not discern, nor does the Examiner further explain,
how any of the four items of metadata described in Waldmann teach a
"target audio component," as claimed by Appellants. (See, e.g., Spec. i-f 48,
describing "target audio component T can include audio signals present in
the local audio environment that the hearing aid user prefers to hear.")
Since we agree with at least one of the arguments advanced by
Appellants, we need not reach the merits of Appellants' other arguments.
Accordingly, we do not sustain the Examiner's rejection of independent
claim 9. For the same reasons, we do not sustain the Examiner's rejection of
dependent claims 13, 26, and 27, which depend from claim 9.
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Claims 5, 16, and 22
Issue 4: Did the Examiner err in finding the combination of
Waldmann, Hanley, and Apfel teaches or suggests "associating meta-data
with the audio sample, the meta-data including an indication of a target
audio component," as recited in dependent claim 5 and commensurately
recited in dependent claims 16 and 22?
Appellants argue there is no disclosure in Apfel that the "meta-data
[includes] an indication of a target audio component." (App. Br. 34.)
Rather, Appellants argue "Apfel discloses comparing the baseline waveform
or vector to the sound sample to determine if an update is required" and "the
baseline cannot be considered as the meta-data." (Id.) Appellants further
argue "the audio sample, in Apfel, is not associated with any meta-data[.]"
(Id.) We agree with Appellants.
The Examiner relies on paragraph 17 of Apfel to teach or suggest the
disputed limitation (Final Act. 5---6), where Apfel states in part:
In an example, a baseline may be generated using a hearing aid
profile, and a sound sample may be processed using the hearing
aid profile to produce one or more values that can be used
determine if a different hearing aid profile may be more suitable
for shaping sounds for the user in the particular acoustic
environment.
(Apfel i-f 17.) The Examiner does not respond to Appellants' arguments
regarding Apfel's disclosure in the Answer, and it is not readily apparent
how the cited disclosure teaches or suggests "associating meta-data with the
audio sample, the meta-data including an indication of a target audio
component."
Since we agree with at least one of the arguments advanced by
Appellants, we need not reach the merits of Appellants' other arguments.
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Accordingly, we agree that the Examiner erred, as the analysis in the
Examiner's rejection is not sufficient to show that claims 5, 16, and 22 are
unpatentable without further explanation. For the same reasons, we do not
sustain the Examiner's rejection of dependent claims 6-8, 17, 18, and 23,
which depend from claims 5, 16, and 22.
Claim 10
Issue 5: Did the Examiner err in finding the combination of
Waldmann, Hanley, and Apfel teaches or suggests "the meta-data that
includes at least an indication of audio characteristics of a local environment
of the hearing aid and an indication of a target audio component," as recited
in dependent claim 1 O?
Appellants argue Apfel fails to teach meta-data includes indication of
a target audio component. (App. Br. 36.) Appellants present similar
arguments as set forth with respect to claims 5, 16, and 22, as described
supra. (Id.) We agree with Appellants.
The Examiner relies on paragraph 24 of Apfel to teach or suggest the
meta-data includes indication of a target audio component. (Final Act. 7.)
Paragraph 24 states:
In addition to modulating sound to compensate for a particular
user's hearing deficiency, at least some hearing aid profiles may
be adjusted to provide sound filtering suitable for a particular
acoustic environment. In particular, the one or more parameters
are configurable to customize the sound shaping and to adjust
the response characteristics of hearing aid 102, so that signal
processor 114 can apply a customized hearing aid profile to a
sound-related signal to compensate for hearing deficits of the
user or otherwise enhance the sound-related signals for the
particular sound environment. Such parameters can include
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signal amplitude and gain characteristics, signal processing
algorithms, frequency response characteristics, coefficients
associated with one or more signal processing algorithms, or
any combination thereof. In some instances, the hearing aid
profile includes instructions stored in memory 104 and
executable by the signal processor 114, and the one or more
parameters can be configured by replacing or modifying the
instructions.
(Apfel i-f 24.) The Examiner does not respond to Appellants' arguments
regarding Apfel's disclosure in the Answer, 1 and it is not readily apparent
how the cited disclosure teaches or suggests "the meta-data that includes ...
an indication of a target audio component." Accordingly, we agree that the
Examiner erred, as the analysis in the Examiner's rejection is not sufficient
to show that claim 10 is unpatentable without further explanation.
Since we agree with at least one of the arguments advanced by
Appellants, we need not reach the merits of Appellants' other arguments.
Accordingly, we do not sustain the Examiner's rejection of claim 10.2 For
the same reasons, we do not sustain the Examiner's rejection of claims 11
and 12, which depend from claim 10.
1 To the extent the Examiner's findings at the top of page 7 of the Answer
were intended to respond to Appellants' arguments on this claim limitation,
we find Examiner's statement that "a person of ordinary skill in the art
would understand that the sound environment of hearing aid is required to be
as one of parameters for the processor to adjust accordingly for the user" to
likewise provide insufficient explanation.
2 In the event of further prosecution, we leave it to the Examiner to evaluate
claim 10 for compliance with 35 U.S.C. § 112, second paragraph, based on
claim 10' s recitation of "the meta-data" (emphasis added).
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DECISION
The Examiner's rejection of claims 1--4, 14, 15, 19-21, 24, 25, and
28-31 is affirmed.
The Examiner's rejection of claims 5-13, 16-18, 22, 23, 26, and 27 is
reversed.
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-IN-PART
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