Ex Parte Phelps et alDownload PDFPatent Trial and Appeal BoardMay 9, 201813949422 (P.T.A.B. May. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/949,422 07/24/2013 10948 7590 05/11/2018 Harrington & Smith, Attorneys At Law, LLC 4 Research Drive, Suite 202 Shelton, CT 06484 FIRST NAMED INVENTOR Andrew Duncan Phelps 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. 850.0040.U3(US) 9972 EXAMINER ZHU, QIN ART UNIT PAPER NUMBER 2656 NOTIFICATION DATE DELIVERY MODE 05/11/2018 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): USPTO@hspatent.com Nokia.IPR@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREW DUNCAN PHELPS and MIKKO VELI AIMO SUV ANTO Appeal 2017-011145 Application 13/949 ,422 1 Technology Center 2600 Before CARLA M. KRIVAK, HUNG H. BUI, and GENE BRANCH, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 21-24, 26-35, 37, and 38. Claims 25, 36, and 39 are canceled. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 2 1 According to Appellants, the real party in interest is Nokia Technologies Oy. App. Br. 1. 2 Our Decision refers to Appellants' Appeal Brief ("App. Br.") filed May 3, 2017; the Reply Brief ("Reply Br.") filed August 31, 2017; Examiner's Answer ("Ans.") mailed August 9, 2017; Final Office Action ("Final Act.") mailed December 7, 2016; and original Specification ("Spec.") filed July 24, 2013. Appeal 2017-011145 Application 13/949,422 STATEMENT OF THE CASE Appellants 'Invention Appellants' invention relates to a "multi-membrane microphone for high-amplitude audio capture." Title (emphasis omitted). According to Appellants, conventional microphone arrangements for a mobile device require: (1) multiple membranes having similar audio sensitivities; or (2) multiple membranes arranged in a stacked configuration. Spec. i-fi-1 21-22. However, neither arrangement accounts for potential wind noise. Spec. i122. As a solution, Appellants provide a two-membrane arrangement for a microphone system, shown in Figure 3, in which each membrane has a different sensitivity and each outputs a separate signal, and only a signal from the less sensitive membrane that has an acceptable distortion level is selected for further processing to prevent audio distortion. Spec. i-fi-1 24--25. Appellants' Figure 3 is reproduced below: High Pass Filter 25 Second l\lem.brnne 20 ASIC 40 30 Appellants' Figure 3 shows a two-membrane arrangement 5 including first and second membranes 10, 20 with different levels of sensitivities. 2 Appeal 2017-011145 Application 13/949,422 According to Appellants, "second membrane 20 may be desensitized due to its configuration, for example, via [ 1] use of a thicker membrane and/or increased stiffness around the periphery of the membrane. Alternatively, [2] the capacitive gap between the second membrane 20 and the back-plate of the substrate 30 may be increased." Spec. i-f 43. Claims 21, 24, 31, and 27 are independent. Representative claim 21 is reproduced below with disputed limitations in italics: 21. A method comprising: receiving an acoustic signal; in response to receiving the acoustic signal, outputting electrical signals from a first input audio transducer and a second input audio transducer, where the second input audio transducer is less sensitive than the first input audio transducer; and alternatively selecting either: a first one of the electrical signals from the first input audio transducer, or a second one of the electrical signals from the second input audio transducer, where the alternatively selecting of the first or second electrical signals is based, at least in part, on signal distortion by high amplitude sound in at least one of the first and second electrical signals, where a difference in sensitivity of the first input audio transducer relative to sensitivity of the second input audio transducer produces the first electrical signal different from the second electrical signal which is due, at least in part, to at least one of: a physical configuration of a first membrane member of the first input audio transducer being different relative to a physical configuration of a second membrane member of the second input audio transducer, and when the first and second transducers are stationary, a capacitive gap between the second input 3 Appeal 2017-011145 Application 13/949,422 audio transducer and a back-plate of a substrate over which the second input audio transducer is mounted is different relative to a capacitive gap between the first input audio transducer and the back-plate of the substrate over which the first input audio transducer is mounted, where the first input audio transducer has a first maximum sound pressure level threshold, where the second input audio transducer has a second maximum sound pressure level threshold, and where the second maximum sound pressure level threshold is lower than the first maximum sound pressure level threshold. App. Br. 48--49 (Claims App.). Killion et al. ("Killion") Sakaidani Hamey et al. ("Hamey") Evidence Considered US 6,327,370 Bl US 2006/0013413 Al US 2008/0049953 Al Condenser Microphones, Media College.com; Dec. 4, 2001 Jan. 19,2006 Feb.28,2008 http:/ /www.mediacollege.com/audio/microphones/condenser.html, last visited April 28, 2018. Examiner's Rejections (1) Claims 21, 23, 24, 26-28, 30, 31, 33, 34, and 37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hamey and Killion. Final Act. 4--9. (2) Claims 22, 32, and 38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hamey, Killion, and Sakaidani. Final Act. 9--10. 4 Appeal 2017-011145 Application 13/949,422 (3) Claims 29 and 35 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Hamey, Killion, and Condenser Microphones. Final Act. 10-11. ANALYSIS § 103(a) Rejection of Claims 21, 23, 24, 26-28, 30, 31, 33, 34, and 37 based on Harney and Killion. In support of the obviousness rejection, the Examiner finds Hamey teaches most limitations of independent claim 21 and similarly, claims 24, 31, and 27, including first and second microphones (i.e., audio transducers) having first and second membranes with different sensitivities. Final Act. 4-- 5 (citing Hamey i-fi-124, 25, 30, and 43); see also Fig. 2. Hamey's Figure 2 is reproduced below with additional markings for illustration. 18A FIG. 2 M1 Output Selector 188 19 M2 less sensitivity 5 Appeal 2017-011145 Application 13/949,422 Hamey's Figure 2 shows microphone system 12 including primary microphone 18A, secondary microphone 18B, and selector 19 to select between an output of primary and secondary microphones 18A-18B based on the noise level. According to Hamey, primary microphone 18A may be more sensitive than secondary microphone 18B and, as such, can detect a certain type of noise (e.g., low frequency noise, such as wind noise in a cellular telephone) that is not detectable, or only partially detectable, by secondary microphone 18B. Hamey i-fi-124--25. In other words, the two microphones ... are configured to have different sensitivities (i.e., to be responsive to signals having different frequency ranges) .... For example, the primary microphone 18A may be responsive to signals from a very low-frequency (e.g., 100 hertz) up to some higher frequency. The secondary microphone 18B, however, may be responsive to signals from a higher low frequency (e.g., 500 Hertz) up to the same (or different) higher frequency as the primary microphone 18A. Hamey i139. Similar to Appellants' Specification (Spec. i1 43), Hamey also teaches that secondary microphone 18B can be desensitized by way of [ 1] a thicker membrane (i.e., diaphragm) or [2] increased size of capacitive gap between membrane (i.e., diaphragm) and the inner structure. Hamey i-fi-140- 43. The Examiner acknowledges Hamey does not expressly teach the first and second membranes of the first and second input audio transducers (microphones) configured with different maximum sound pressure levels (SPLs), but relies on Killion as evidence to show the well-known relationship between the membranes (microphones) and different maximum sound pressure levels (SPLs) in order to support the conclusion of 6 Appeal 2017-011145 Application 13/949,422 obviousness. Final Act. 5-6 (citing Killion 3:9-19, 8:50-60, and Fig. 10). In particular, the Examiner reasons that "one of ordinary skill in the art would realize that since ... microphones have different sensitivities, their maximum SPL thresholds also differ." Final Act. 6. According to the Examiner, "it would be obvious to one of ordinary skill in the art that having different sensitivity levels for a microphone results in different maximum SPL levels for the respective microphones." Advisory Act. 2. Appellants contend neither Hamey nor Killion teaches or suggests the disputed limitation: where the first input audio transducer has a first maximum sound pressure level threshold, where the second input audio transducer has a second maximum sound pressure level threshold, and where the second maximum sound pressure level threshold is lower than the first maximum sound pressure level threshold as recited in claim 21 and, similarly recited in claims 24, 31, and 37. App. Br. 11-24; Reply Br. 3-11. In particular, Appellants argue nowhere in Hamey and Killion is there any teaching or suggestion of (1) different sensitivities and different maximum sound pressure level (SPL) thresholds; and (2) "microphones having different sound pressure ... thresholds." App. Br. 14--24; Reply Br. 4--11. According to Appellants, "[t]here is nothing in Killion et al. which teaches or suggests that the maximum sound level thresholds of the two microphones 15, 20 [shown in Figures 1, 8, and 9] should be different." App. Br. 30. Appellants also argue "it is not 'inherent' in either of Killion et al. nor Hamey et al. to have different microphones with different maximum sound pressure level (SPL) thresholds; especially since both references discuss 7 Appeal 2017-011145 Application 13/949,422 sensitivities other than 'sensitivity' being in regard to maximum sound pressure level (SPL) thresholds" and, as such, "[t]here is no necessity that the microphone in Hamey and Killion 'must' have different maximum SPLs." App. Br. 12-14, and 27. According to Appellants, Hamey's Figures 6A-6B show the operating range of the microphones as having "the same amplitude levels" and, as such, "the same amplitude sensitivity levels." App. Br. 27, 36. We do not find Appellants' arguments persuasive. Instead, we find the Examiner has provided a comprehensive response to Appellants' arguments supported by evidence. Ans. 12-17. As such, we adopt the Examiner's findings and explanations provided therein. Id. For example, as correctly recognized by the Examiner, Hamey's Figures 6A---6B are intended to show that the frequency response of the two microphones, i.e., "the two microphones have two different frequency cut-offs" and not "the same amplitude sensitivity levels" as Appellants argue. Ans. 13. For additional emphasis, we also note that Appellants' arguments are contrary to the fundamentals of microphone technology3 and are inconsistent with the law of obviousness. 4 Obviousness is a question of law based on underlying factual findings including the scope and content of the prior art, the differences between the claimed invention and the prior art, and the level of ordinary skill in the pertinent art. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 427 (2007); Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966). In an obviousness analysis, precise teachings directed to the specific subject matter claimed need not be identified because the 3 See Microphone Handbook, National Instruments, Feb. 28, 2012. 4 See 35 U.S.C § 103(a). 8 Appeal 2017-011145 Application 13/949,422 inferences and creative steps that a person of ordinary skill in the art would employ can be taken into account. See KSR, 550 U.S. at 418. In this regard, "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." Id. at 421. As well understood by those skilled in the art, microphones are electroacoustic transducers used to convert mechanical energy (the motion of the air caused by sound waves) into electrical energy (voltage). An increase in sound pressure level (SPL) causes more vigorous motion of the air, which causes a greater movement of the microphone membrane (diaphragm) and generates a proportional increase in voltage output of the microphone. There are a variety of membrane (diaphragm) designs available, all of which vibrate in reaction to sound pressure waves of varying intensity. For example, a microphone with higher sensitivity will "pick up" quieter sounds than a microphone with lower sensitivity, typically due to a lighter and more "sensitive" membrane (diaphragm) which can react to smaller variations in air pressure. For louder sound, a less sensitive microphone is sufficient. Regardless, all microphones are designed to respond to a certain sound pressure level, ranging from a hearing threshold at 0 decibel (dB) sound pressure level (SPL) to a maximum threshold of pain for human ear at 140 dB SPL. Each microphone is rated by a manufacturer with a maximum sound pressure level (SPL) threshold, which indicates the highest sound pressure level a microphone's electronics can operate before the onset of distortion. Consistent with the fundamentals of microphone technology, Appellants' Specification describes "maximum sound pressure level (SPL) threshold" as an operational characteristic of microphones, i.e., first and 9 Appeal 2017-011145 Application 13/949,422 second membranes 10, 20 shown in Figure 3. Reply Br. 8. For example, Appellants' Specification describes: (1) first and second membranes 10, 20 as having different sensitivities (Spec. i-f 24); (2) the second membrane 20 as having "a lower sensitivity as compared to the first membrane 10, meaning that the second membrane has a lower maximum SPL threshold" (Spec. i-f 27); and (3) "the first membrane 10 is configured with a maximum SPL between about 120 dB and about 140 dB", whereas "[t]he second membrane 20 is ... desensitized and configured with a maximum SPL that is, for example, about 20-30 dB less than the first membrane 10." (Spec. i-f 43). Similar to Appellants' invention, Hamey teaches a microphone design, shown in Figure 2, to combine two microphones with different sensitivities 18A-18B and utilize selector 19 to select an output of those two microphones 18A-18B based on the noise level. See Hamey's Figure 2. As correctly identified by the Examiner, the only difference between Appellants' invention (recited in claims 21, 24, 31, and 37) and Hamey is the maximum sound pressure level (SPL) threshold assigned for the two microphones. Based on the fundamentals of microphone technology (including Hamey and Killion), we agree with the Examiner that: (1) because these two microphones have different sensitivities, their maximum sound pressure level (SPL) thresholds also differ (Final Act. 6); and (2) because the 2nd microphone has a lower level of sensitivity, the 2nd microphone also has a maximum sound pressure level (SPL) threshold that is lower than that of the pt microphone. Final Act. 6; Ans. 14--16. Lastly, Appellants argue the Examiner improperly relies on extrinsic evidence to show the common knowledge and well-known relationship between "microphone sensitivity" and "maximum SPL of a microphone" in 10 Appeal 2017-011145 Application 13/949,422 the Advisory Action, mailed on February 23, 2017 ("Advisory Act."). App. Br. 10-11; Reply Br. 1-2. The evidence included: (1) WO 2001078446 (Van et al.) "Microphone with range switching" (describing that a lower sensitivity microphone ... results in a maximum SPL input ... higher than the previous microphone (with a higher sensitivity)) (Advisory Act. 2 (citing Van '446, 2:4--5); (2) http://shure.custhelp.com/app/answers/detail/a id/77/- /how-do-i-compare-the-sensitivity-of-two-microphones%3 F, published 2/17 /2000; (3) https://www.sweetwater.com/insync/maximum-spl-sound pressure-level/, published 1/12/1998; and (4) SMM310 ("Silicon MEMS microphone"). However, Appellants' argument is not persuasive because common knowledge has "long been recognized to inform the analysis of obviousness if explained with sufficient reasoning." See Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009). In particular, common knowledge can be invoked to provide a suggestion or motivation to combine or modify a prior art reference. See DyStar Textilfarben GmbH & Co. Deutschland KG v. CH Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006). Based on the teachings of Hamey and Killion together with evidence of the common knowledge and well-known relationship between "microphone sensitivity" and "maximum SPL of a microphone" provided by the Examiner, we agree with the Examiner that an ordinarily skilled artisan would have understood that "since ... microphones have different sensitivities, their maximum SPL thresholds also differ" (Final Act. 6, 12; Advisory Act. 2) and that "having different sensitivity levels for a microphone results in different maximum SPL levels for the respective microphones." (Advisory Act. 2). 11 Appeal 2017-011145 Application 13/949,422 For these reasons, Appellants' arguments have not persuaded us of error in the Examiner's rejection of independent claims 21, 24, 31, and 37. Accordingly, we sustain the Examiner's rejection of claims 21, 24, 31, and 37 and their respective dependent claims 22-23, 26-30, 32-35, and 38, which Appellants do not argue separately. See 37 C.F.R. § 41.37(c)(l)(iv). CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 21-24, 26-35, 37, and 38 under 35 U.S.C. § 103(a). DECISION As such, we affirm the Examiner's Final Rejection of claims 21-24, 26-35, 37, and 38. 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 12 Copy with citationCopy as parenthetical citation