Ex parte Potter

Board of Patent Appeals and Interferences

Oct 21, 1999

08058478 (B.P.A.I. Oct. 21, 1999)

Application for patent filed May 6, 1993. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 30
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte DEWEY POTTER
_____________
Appeal No. 1996-1891
Application 08/058,4781
______________
HEARD: SEPTEMBER 15, 1999
_______________
Before KRASS, MARTIN, and GROSS, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner's rejection of claims 1-6, 9, and 10, all of the
pending claims, under 35 U.S.C. §§ 102, 103, and/or 112. We
affirm-in-part and reverse-in-part.
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Application 08/058,478
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A. The invention
The invention is an acoustic waveguide loudspeaker system
including damping material located in a passage which connects
the vibratile surface of the electroacoustical transducer to
an opening in the system housing.
B. The claims
Representative claim 1 reads as follows:
1. An acoustic waveguide loudspeaker system comprising:
an electroacoustical transducer having a vibratile
surface,
an acoustic waveguide having a first end open and a
second end adjacent to said vibratile surface and an effective
length corresponding substantially to a quarter wavelength at
the lowest frequency of pressure wave energy to be transmitted
between said first and second ends,
and damping material in said waveguide near said
vibratile surface positioned so as to negligibly attenuate
bass frequency energy while of sufficient volume to damp peaks
at higher frequencies above the range of said bass frequency
energy.
We note this claim does not require that the damping
material be located only near the vibratile surface and thus
is broad enough to read on a waveguide having damping material
located near to and far from the vibratile surface, e.g., a
waveguide having damping material along its the entire length.
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Application 08/058,478
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C. The references and the rejections
The references relied on in the Answer are:
Bose et al. (Bose) 4,628,528 Dec. 9, 1986
Taddeo 4,837,837 June 6, 1989
Spear et al. (Spear) 5,373,564 Dec. 13, 1994
(filed Oct. 2, 1992)
Although claims 1-6 were rejected in the final Office
action under § 103 for unpatentability over Bose in view of
Taddeo and Weckler U.S. Patent 4,807,293, the examiner has
withdrawn his reliance on Weckler (Answer at 4 and 9).
Claims 1-6, 9, and 10 stand rejected in the final Office
action and the Answer under 35 U.S.C. § 112, first paragraph,
as based on a non-enabling disclosure.
Claim 9 was additionally rejected for the first time in
the Answer under § 102(e) as anticipated by Spear. Appellant
responded by adding a new limitation to claim 9 and rewriting
its dependent 10 in independent form. The examiner entered
these amendments but does not consider the amendment of claim
9 sufficient to overcome the § 102(e) rejection.
D. The merits of the § 112 rejection of claims 1-6, 9, and 10
Appeal No. 1996-1891
Application 08/058,478
This requirement initially appeared in the claims and2
abstract as originally filed and therefore does not raise a
question of noncompliance with the written description
requirement of the first paragraph of § 112. See In re
Wertheim, 541 F.2d 257, 264, 191 USPQ 90, 98 (CCPA 1976)
(original claims constitute their own written description
support).
These lines read "The bass spectral components from the3
other stereo channel may be summed and radiated by the
invention, typically from 70 to 300 Hz."
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The examiner contends that the specification fails to
teach a waveguide having a length corresponding to a quarter
wavelength at the lowest frequency of pressure wave energy to
be transmitted between the first and second ends, as required
by each of the independent claims, i.e., claims 1, 9, and 10. 2
Specifically, the examiner argues that although the
specification gives 70 Hz as typically the lowest bass
frequency (Spec. at 3, lines 29-32 ), it describes the3
quarter-wave mode as being "at a predetermined bass frequency,
typically 80 Hz" (Spec. at 3, lines 5-6), which the examiner
does not consider to be substantially the same as 70 Hz
(Answer at 3, 8). It is not clear why the examiner believes
this alleged contradiction raises a non-enablement issue, as
he does not contend that one skilled in the art would have
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Application 08/058,478
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been unable to make a loudspeaker system which satisfies the
claim language without undue experimentation. In re Vaeck,
947 F.2d 488, 495, 20 USPQ2d 1438, 1444 (Fed. Cir. 1991).
Instead, the examiner's concern appears to be that the claim
language fails to describe what appellant actually regards as
his invention, a matter which should have been raised in a
rejection based on the second rather that the first paragraph
of § 112. In any event, we agree with appellant that the
claim language "effective length corresponding substantially
to a quarter wavelength at the lowest frequency . . ."
accurately describes the disclosed example. That is, bearing
in mind that the bass range is described as being typically
from 70 to 300 Hz, a quarter wavelength at 80 Hz corresponds
substantially to a quarter wavelength at 70 Hz.
For the foregoing reasons, we are reversing the § 112
rejection as to all of the appealed claims.
E. The merits of the § 103 rejection of
claims 1-6 over Bose in view of Taddeo
The level of skill in the art is represented by the Bose
and Taddeo references. In re Oelrich, 579 F.2d 86, 91, 198
USPQ 210, 214 (CCPA 1978) ("the PTO usually must evaluate both
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Application 08/058,478
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the scope and content of the prior art and the level of
ordinary skill solely on the cold words of the literature").
In re GPAC, Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121
(Fed. Cir. 1995)(board did not err in adopting the approach
that the level of skill in the art was best determined by the
references of record).
Figure 1 of Bose shows an acoustic waveguide loudspeaker
system which includes an electroacoustical transducer or
driver 22. The back side of the transducer communicates with
an opening 28 in front panel 16 of the loudspeaker housing via
a folded rear tube or waveguide formed by internal vertical
walls 21 and 23, internal horizontal walls 24-27 (26 is not
labeled), right side panel 15, top panel 12, front panel 16,
and rear panel 17. Bose's claim 1 specifies that the
effective length of the rear tube is substantially equal to a
quarter wavelength at the lowest frequency of pressure wave
energy to be transmitted between first and second ends.
Consequently, the preamble and the first two paragraphs of
appellant's claim 1 read on Bose. Appellant does not contend
otherwise. However, Bose lacks the claimed damping material
in the waveguide. Bose explains that
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Application 08/058,478
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[w]hile prior art approaches using acoustic
transmission lines generally teach the use of sound
absorbing material to minimize resonance phenomena
in the tube, according to the present invention the
tube is preferably hard and free of sound absorbing
material to take advantage of the resonance
phenomena in the acoustic transmission line to
achieve improved impedance match and thereby improve
power transfer between the loudspeaker driver and
the environment outside the cabinet. [Emphasis
added.] [Col. 3, lines 34-42.]
Taddeo, which shows a loudspeaker system having a shorter
labyrinth passage, discloses that it is known to provide
labyrinth speaker systems with
some form of damping or stuffing material for the
damping of undesired sound waves. In some instances
the damping material is simply in the form of a
lining inside the housing; and in other cases the
damping material is stuffed in the housing
completely to block off certain portions thereof,
such as for example portions of the labyrinth formed
in a transmission line
housing. Typical materials used in [the] past have
been wool, fiberglass and polyester fibers. Foam
materials have also been used.
The primary reasons for utilizing damping
materials in such housings are twofold. First, the
damping material is used to absorb unwanted higher
frequency sounds, such as internal reflections and
standing wave resonances between walls of the
cabinet, and to the extent that the lower
frequencies are attenuated to a much lower degree,
the damping material therefore acts as a desirable
low-pass filter. Secondly, the damping materials
are used to reduce the necessary cabinet volume. In
transmission line or labyrinth type enclosures, the
Appeal No. 1996-1891
Application 08/058,478
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damping material also acts to reduce the speed of
sound, thereby reducing the necessary line length
and enclosure dimension. [Emphasis added.] [Col. 1,
lines 39-62.]
Taddeo's invention is the use of goat's hair (mohair) instead
of wool as the sound absorbing material (col. 2, lines 31-36).
"Typically the goat's hair is stuffed in rather large
quantities, as compared to the wool heretofore employed, in a
portion of the speaker labyrinth to interpose the goat's hair
stuffing between the speaker or driver and the outlet end of
the labyrinth" (col. 2, lines 36-40). Taddeo's Figure 2 shows
an embodiment in which the mohair is located at one of the two
U-shaped bends in the labyrinth passage about midway between
transducer 12 and
opening 13. This figure is described as follows at column 4,
lines 4-10: "In order to dampen undesirable sound waves in
housing 10, the labyrinth, which is formed in the housing by
the partitions 15, 18, 19 between the driver 12 and the port
13, is partially stuffed or filled as at 20 in FIG. 2 with
mohair fibers up to the level L. Thus, sound waves emanating
from the speaker 12 must pass through the mohair filling 20
before reaching port 13."
Appeal No. 1996-1891
Application 08/058,478
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The examiner's position (Answer at 5) is that
it would have been obvious . . . to apply
Taddeo's teaching of damping material near
the vibratile surface to Bose's loudspeaker
system to perform no more than its intended
function[,] which is to absorb unwanted
higher frequency sounds, and to attenuate
the lower frequency sounds to a much lower
degree (see column 1, lines 51-52 and 54-56
of Taddeo).
As explained in In re Rouffet, 149 F.3d 1350, 1355,
47 USPQ2d 1453, 1455 (Fed. Cir. 1998),
[t]o reject claims in an application under
section 103, an examiner must show an unrebutted
prima facie case of obviousness. See In re Deuel,
51 F.3d 1552, 1557, 34 USPQ2d 1210, 1214 (Fed. Cir.
1995). In the absence of a proper prima facie case
of obviousness, an applicant who complies with the
other statutory requirements is entitled to a
patent. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). On appeal to
the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case
with evidence of secondary indicia of
nonobviousness. See id.
Appellant does not dispute the obviousness of using Taddeo's
damping material 20, i.e., mohair, in Bose's waveguide or deny
that mohair will absorb unwanted higher frequency sound and
attenuate lower frequencies to a much lower degree. Instead,
appellant argues (Opening brief at 7) that Taddeo
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Application 08/058,478
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discloses locating damping material 20 far from the
vibratile diaphragm. That is hardly a teaching of
locating the damping material near the vibratile
diaphragm in a waveguide speaker as disclosed and
claimed in this application. [Appellant's] FIGS. 1,
2 and 4 clearly disclose [that] the damping material
14, 24, 24' in the waveguide is near the vibratile
surface at the driver end of the waveguide"
[Emphasis added.]
Appellant further notes that his specification explains that
[b]y locating the polyester damping material 24
at the driver end as shown, the velocity is low at
low frequencies, and the damping material negligibly
attenuates bass frequency energy. However, at
higher frequencies, shorter wavelengths, the
velocity is higher, and the damping material 24
damps these higher frequency peaks as shown in FIG.
3 with a single block of damping material as shown.
[Spec. at 2, lines 19-25.]
We do not agree that Taddeo teaches that the damping material
must be located far from the vibratile surface, as appellant
contends. Taddeo does not explain where along the length of
the waveguide the damping material should be located; it is
only necessary that, as explained in Taddeo's claim 1, the
mohair fibers be "positioned in said housing and operatively
filling a portion of said labyrinth to a level such that all
sound waves emanating from said loudspeaker must pass through
said mohair fibers before reaching said other opening." While
this result is accomplished in Taddeo's Figure 2 system by
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locating the damping material in the U-shaped turn that opens
upward, Taddeo does not indicate that this is the only
suitable location for the damping material. Consequently, we
are of the opinion that one skilled in the art would have
understood Taddeo to be teaching that the mohair can be
located anywhere along the length of the waveguide, provided
it completely fills the cross-sectional area of a portion of
the waveguide without interfering with the transducer or the
open end of the waveguide. Thus, it would have been prima
facie obvious to position Taddeo's mohair damping material
anywhere along the length of Bose's waveguide, e.g., in the
portion of the waveguide closest to the transducer or at the
U-shaped turn that is closest to the transducer. To the
extent appellant is arguing that the prima facie case is
rebutted by the fact that his invention, by locating the
damping material only near the transducer, achieves
unexpectedly good results, we are unpersuaded, for two
reasons. The first is that this argument is not commensurate
in scope with the claim, which does not require that the
damping material be located only near the transducer. The
second reason is the record before us, including appellant's
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specification, does not provide any data which compares the
results of locating the damping material only near the
transducer with the results of locating the damping material
elsewhere in the waveguide. Instead, appellant's Figure 3
compares the results of locating the damping material only
near the transducer (heavy trace) with the results of
employing no damping material anywhere in the waveguide (thin
trace) (Spec. at 2, lines 7-12). Compare Richardson-Vicks,
Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d 1181, 1186
(Fed. Cir. 1997) ("the PTO must consider comparative data in
the specification in determining whether the claimed invention
provides unexpected results") (emphasis omitted) (quoting In
re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687 (Fed. Cir.
1995)).
For the foregoing reasons, we will affirm the § 103
rejection of claim 1 based on Bose in view of Taddeo. The
rejection of claims 2 and 3, which are not separately argued,
is also affirmed. In re Nielson, 816 F.2d 1567, 1572,
2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
Dependent claims 4-6 are separately argued. Claim 4
specifies that the first of the waveguide portions near the
Appeal No. 1996-1891
Application 08/058,478
As noted supra, numerals 16 and 17 refer to the front4
and rear panels, respectively.
- 13 -
vibratile surface is substantially filled with the damping
material. As explained above, we are the opinion that it
would have been prima facie obvious to locate Taddeo's damping
material in a region of Bose's waveguide which begins near the
transducer, which will satisfy this claim. For the same
reason, we are affirming the rejection of claim 6, which
specifies that a volume
of the waveguide nearest the vibratile surface is
substantially filled with the damping material.
Claim 5 specifies that the last of the waveguide portions
is separated from a first group of the waveguide portions by a
second group of waveguide portions formed by waveguide walls
generally perpendicular to the vibratile surface. The
examiner describes Bose as disclosing
an acoustic waveguide having a last portion (the
portion containing walls 12 and 27) of the waveguide
portions . . . separated from a first of the
waveguide portions (the portion bounded by walls 21,
24, 23 and 15) by a second group of the waveguide
portions (the areas 16 and 17 [sic, the waveguide4
portion bounded by walls 24 and 25 and the waveguide
portion bounded by walls 25 and 26]) formed by the
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Application 08/058,478
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waveguide walls generally parallel to the vibratile
surface. [Answer at 6.]
As appellant correctly notes, these waveguide portions are
formed by walls that are perpendicular to the vibratile
surface, not parallel thereto as argued by the examiner.
Consequently, the rejection of claim 5 is reversed.
Claim 9 stands rejected under § 102(e) as anticipated by
Spear. This claim calls for, inter alia, (a) the waveguide to
have "damping material in said waveguide at said driver end
extending into said waveguide for a predetermined length near
said vibratile surface" and (b) "the length of said waveguide
between said first end and said damping material [to be]
significantly greater than said predetermined length." These
limitations clearly require that the damping material not fill
the entire waveguide. As appellant correctly notes, Spear's
damping material fills the entire waveguide. See column 3,
lines 18-20: "The housing is completed by respective top and
bottom walls E--E as shown. Normal standing wave modes that
freely arise along the entire height of the line are damped
conventionally by placing symbolized fibrous materials
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Application 08/058,478
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throughout the housing from top to bottom." The band width is
determined by the packing density of the material:
When the line is stuffed with fibers, the band
of frequencies passed by the opening can be
broadened and shifted depending on the amount of
fiber stuffing and
also on the cross-sectional area of the passage.
Generally speaking, a passage with low stuffing
densities and large cross-sectional area will
produce a wider band width and have lower bass
extension and greater amplitude. Passages with
higher stuffing densities and small cross sectional
area will produce a narrower band width with reduced
low bass and lower amplitude, but with improved
transient response.
[Spear, col. 4, lines 9-20.]
For the foregoing reasons, we are reversing the rejection of
claim 9. We note that claim 9 further specifies that the
waveguide comprises a first set of parallel waveguide walls
generally perpendicular to the vibratile surface and a second
set of parallel waveguide walls generally parallel to the
vibratile surface. Appellant does not dispute the examiner's
reliance on Spear's horizontal walls 16 to satisfy the
requirement for a first set of parallel waveguide walls
generally perpendicular to the vibratile surface. However,
appellant does take issue with the examiner's reliance on the
parts of side walls 20 and 28 that are located between angled
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Application 08/058,478
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portions 24 to satisfy the requirement for a second set of
parallel waveguide walls generally parallel to the vibratile
surface. However, we do not agree with appellant that the
claim language precludes the presence of these angled
portions.
Appeal No. 1996-1891
Application 08/058,478
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
)
ERROL A. KRASS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN C. MARTIN )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
ANITA PELLMAN GROSS )
Administrative Patent Judge )
Appeal No. 1996-1891
Application 08/058,478
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cc:
Charles Hieken, Esq.
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