Ex Parte Konjeti et alDownload PDFPatent Trial and Appeal BoardJan 30, 201814627461 (P.T.A.B. Jan. 30, 2018) Copy Citation 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. 14/627,461 02/20/2015 Srikanth KONJETI HARM 0397 PUS 3743 109676 7590 02/01/2018 Rrnnks; Kiisdiman P P /Harman EXAMINER 1000 Town Center FALEY, KATHERINE A Twenty Second Floor Southfield, MI 48075 ART UNIT PAPER NUMBER 2652 NOTIFICATION DATE DELIVERY MODE 02/01/2018 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): docketing @brookskushman. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SRIKANTH KNOJETI, VALLABHA VASANTHAMPIHOLI, and KARTHIK VENKAT1 Appeal 2017-006279 Application 14/627,461 Technology Center 2600 Before CARLA M. KRIVAK, CAROLYN D. THOMAS, and JESSICA C. KAISER, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1,2, 4—15, and 18—21, all the pending claims in the present application. Claims 3,16, and 17 are canceled. See Claims Appendix. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 The Appellants name Harman International Industries, Inc. as the real party in interest (App. Br. 4). Appeal 2017-006279 Application 14/627,461 The present invention relates generally to a headphone listening device. See Abstract. Claim 1 is illustrative: 1. A headphone listening device, comprising: a first speaker and a second speaker interconnected by a head support; at least one sensor configured to detect an angular displacement of an earpiece housing of one of the first speaker and the second speaker, the angular displacement being indicative of a head size; and a controller configured to apply at least one speaker attribute to at least one of the first speaker and second speaker based on the angular displacement. Appellants appeal the following rejections: Rl. Claims 1, 2, 8, 11, and 13 are rejected under 35 U.S.C. § 102(b) as being anticipated by Agevik (US 2013/0177166 Al, July 11, 2013); R2. Claims 4, 5, and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Agevik and Sauk (US 2008/0008342 Al, Jan. 10, 2008); R3. Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Agevik, Sauk, and Walsh (US 2014/0153727 Al, June 5, 2014); and R4. Claims 9, 12, 14, 15, and 18—21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Agevik and Walsh. We review the appealed rejections for error based upon the issues identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). 2 Appeal 2017-006279 Application 14/627,461 ANALYSIS Rejection under § 102 Claims 1, 2, 8, 11, and 13 Appellants contend that “Agevik discloses a ‘degree of bend’ for the segments between the earpieces and not ‘an angular displacement of an earpiece housing,’ within the context of the claims” (App. Br. 7). The Examiner finds that in Agevik “the degree of bend in the segments [410-1 or 410-2] is the same as the degree of displacement of the earpiece housings with respect to the vertex of the angle ... it is reasonable to interpret ‘angular displacement’ as a ‘degree of bend’” (Ans. 9). We agree with the Examiner. For example, Agevik discloses that the “sensor 300 may determine the head size of user 102 based on the strain or the degree of bend in, for example, segment 410-1 or 410-2” (Agevik | 54; see also Figs. 4A-4B). The Examiner reasons, and we agree, that “the degree of bend in the segments is the same as the degree of displacement of the earpiece housing with respect to the vertex” (Ans. 9). In other words, the degree of bend of segments 410-1/410-2 from the sensor 300 is also a measure of the degree of bend of the earpieces 110-1/110-2 housing from the sensor (see Agevik Figs. 4A-4B). In addition, the degree of bend in Agevik is specifically used to determine the head size of a user (Agevik | 54). Further, we add that claim 1 fails to recite what the “angular displacement” is measured from. Therefore, we find the Examiner’s aforementioned interpretation to be reasonable, i.e., an angular displacement of Agevik’s earpiece housing is the same as a bend in segments 410-1/410-2 as measured from the vertex/sensor 300 to determine the head size of the user. Appellants’ contentions fail to persuasively distinguish the claimed 3 Appeal 2017-006279 Application 14/627,461 “angular displacement” of an earpiece housing from Agevik’s degree of bend of the segments 410-1/410-2. Accordingly, we sustain the Examiner’s anticipation rejection of claim 1. Appellants’ arguments regarding the Examiner’s rejection of independent claim 8 rely on the same arguments as for claim 1, and Appellants do not argue separate patentability for dependent claims 2, 11, and 13 (see App. Br. 6—7). We, therefore, also sustain the Examiner’s anticipation rejection of claims 2, 8, 11, and 13. Rejections under § 103(a) Claims 4 and 10 Appellants contend that “Agevik fails to recite any ‘gyroscope’” (App. Br. 7). In response, the Examiner points out that the “Examiner relies upon para 0025 of Sauk to teach a gyroscope . . . Agevik in view of Sauk teach the limitations of the claim” (Ans. 10; see also Final Act. 5), not Agevik alone. Therefore, Appellants’ argument against Agevik separately from Sauk does not persuasively rebut the combination made by the Examiner. One cannot show non-obviousness by attacking references individually, where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425- 26 (CCPA1981). Accordingly, we sustain the Examiner’s rejection of claim 4 and claim 10 for which Appellants rely on the same arguments (App. Br. 8). 4 Appeal 2017-006279 Application 14/627,461 Claim 5 For claim 5, Appellants argue substantially the same arguments as for claim 1 (see App. Br. 8), which we find unpersuasive as noted supra. Accordingly, we sustain the Examiner’s rejection of claim 5 for at least the same reasons as for claim 1, and also for the same reasons as for claim 4, from which claim 5 depends. Claims 6, 12, and 19 Appellants contend that “Agevik is silent as to each of ‘an equalization profile, a volume level, and a gain table’” (App. Br. 9). In response, the Examiner points out that the “Examiner relies upon para 0071 of Walsh[, not Agevik,] to teach an equalization setting for headphones” (Ans. 11; see also Final Act. 6). We further add that claim 6 merely requires at least one of “an equalization profile, a volume level, and a gain table,” not each of as argued by Appellants. Therefore, Appellants’ argument against Agevik separately from Walsh does not persuasively rebut the combination made by the Examiner. Again, one cannot show non-obviousness by attacking references individually, where the rejections are based on combinations of references. Accordingly, we sustain the Examiner’s rejection of claim 6, and claims 12 and 19 for which Appellants rely on the same arguments (App. Br. 11—12). Claim 7 For claim 7, Appellants argue substantially the same arguments as for claim 1 (see App. Br. 9), which we find unpersuasive as noted supra. Accordingly, we sustain the Examiner’s rejection of claim 7 for at least the 5 Appeal 2017-006279 Application 14/627,461 same reasons as for claim 1, and also for the same reasons as for claims 4 and 5 from which claim 7 depends. Claims 9 Appellants have not presented separate arguments for dependent claim 9. Therefore, claim 9 falls with claim 8 from which it depends. See 37 C.F.R. § 41.37(c)(l)(vi)(2012). Claims 14, 20, and 21 Appellants contend that “Walsh is silent as to any ‘length of the head support’ and therefore cannot teach an age and hearing ability indicated by the same . . . [and] Agevik still does not ‘select[] a profile’ where ‘the profile is associated with an age of a user’” (App. Br. 10). In response, the Examiner finds that “Walsh is meant to teach that certain attributes can be associated with a user profile. . . . [including associating] an age with a user . . . [and] Agevik teaches a profile or database based on head size” (Ans. 12). In other words, the Examiner is relying on the combined teachings of Walsh and Agevik to teach or suggest the argued limitation. Appellants’ arguments do not take into account what the collective teachings of the prior art would have suggested to one of ordinary skill in the art and are therefore ineffective to rebut the Examiner’s prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)(“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the 6 Appeal 2017-006279 Application 14/627,461 references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”) (citations omitted). This reasoning is applicable here because Walsh is not being relied upon to teach “length of the head support” and Agevik is not being relied upon to teach “an age of a user,” but both are relied upon to show what the combined teachings would have suggested to one of ordinary skill. Accordingly, we sustain the Examiner’s rejection of claim 14. Claim 15 For claim 15, Appellants argue substantially the same arguments as for claim 1 (see App. Br. 11), which we find unpersuasive as noted supra. Accordingly, we sustain the Examiner’s rejection of claim 15 for at least the same reasons as for claim 1, and also for the same reasons as for claim 14 from which claim 15 depends. Claim 18 Appellants contend that “it is unclear how Walsh teaches a speaker setting that includes a maximum volume that corresponds to the user age” (App. Br. 11). In response, the Examiner finds that “[sjimilar to claim 14, Walsh is meant to teach that certain attributes can be associated with a user profile . . . Para 0080 then teaches associating those hearing test results with a user profile [and] Para 0088 of Walsh associates an age with a user” (Ans. 13). We agree with the Examiner. For example, Walsh teaches that “[t]he listener hearing test may determine . . . maximum loudness thresholds” (see 179), suggests that the listener profile is generated based on the hearing test results, and various 7 Appeal 2017-006279 Application 14/627,461 profiles (see 1 80), and teaches that “[bjased on what the system knows about the user [such as age], the system may assign a listener profile” (see 188). Thus, we find unavailing Appellants contention that it is unclear how Walsh teaches the argued limitation, given the aforementioned disclosures in Walsh. Accordingly, we sustain the Examiner’s rejection of claim 18. DECISION We affirm the Examiner’s § 102 and § 103 rejections Rl—R4 of claims 1, 2, 4—15, and 18—21. 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 8 Copy with citationCopy as parenthetical citation