Ex Parte Probst

Patent Trial and Appeal Board

Jan 29, 2018

13133989 (P.T.A.B. Jan. 29, 2018)

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.
13/133,989 06/10/2011 Daniel Probst TSW-48102 7222
86378 7590 01/31/2018
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EXAMINER
1801 East 9th Street SAAVEDRA, EMILIO J
Suite 1200
Cleveland, OH 44114-3108 ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL PROBST1
Appeal 2017-008399
Application 13/133,989
Technology Center 2100
Before CAROLYN D. THOMAS, JEREMY J. CURCURI, and
DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—7, 11—14, and 16—22.2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to the Appeal Brief, the real party in interest is Sonova AG. See
Appeal Br. 2.
2 Claims 8—10 and 15 are cancelled. See Appeal Br. 19, 20.
Appeal 2017-008399
Application 13/133,989
STATEMENT OF THE CASE
Introduction
According to Appellant, the claimed invention relates to a method of
manufacturing a hearing device individually shaped from an otoplastic. See
Spec. 2—3.3 More specifically, the otoplastic is “manufactured and tested to
obtain property data about the otoplastic. The algorithm or a transfer
function of the hearing aid is adjusted based on these determined property
data about the otoplastic. The amended algorithm or transfer function is
used to repeat the process so as to iteratively design” the otoplastic. Appeal
Br. 8.
Exemplary Claims
Claims 1,18, and 21 are independent. Claims 1,18, and 21 are
exemplary of the claimed subject matter and are reproduced with disputed
limitations emphasized below:
1. A method of manufacturing a hearing device
comprising an otoplastic individually shaped for a user intended
to be using the hearing device, said method comprising the
steps of
a) providing input data for each of a set of input
parameters, an algorithm, and a set of target parameters,
wherein at least a portion of said input data are individual to
said user, and wherein said target parameters are parameters
related to acoustical properties of the hearing device;
3 Throughout this Opinion, we refer to the following documents: (1)
Appellant’s Specification, filed June 10, 2011 (“Spec.”); (2) the Final Office
Action (“Final Act.”), mailed July 8, 2016; (3) the Appeal Brief (“Appeal
Br.”), filed December 5, 2016; (4) the Examiner’s Answer (“Ans.”), mailed
March 13, 2017; and (5) the Reply Brief (“Reply Br.”), filed May 12, 2017.
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Application 13/133,989
b) iteratively determining target data for each of the set
of target parameters by applying said algorithm to said input
data;
c) designing a suitable three-dimensional shape of said
otoplastic in dependence of said target data by means of an
otoplastic modelling software;
d) manufacturing said otoplastic according to said
suitable three-dimensional shape;
e) obtaining property data using said otoplastic, wherein
said property data are descriptive of properties related to said
manufactured otoplastic, and at least a portion of said property
data is descriptive of properties related to said otoplastic
inserted in an ear of said user, said property data being at least
one of:
a rest volume between an otoplastic and the ear
drum of the user,
a feedback threshold of the hearing device,
an active insertion gain,
a passive insertion gain, and
an acoustic mass of a vent; and
f) amending said algorithm in dependence of said
property data, wherein said amending occurs between an
iterative determination of target data and comprises at least
one of:
defining an amended set of input parameters, and
defining an amended set of target parameters,
wherein a functional dependency of the target data
on the input data is changed.
18. A method of adjusting a transfer function of a
hearing device comprising an otoplastic individually shaped for
a user intended to be using the hearing device to the needs of
the user, said method comprising the steps of
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Application 13/133,989
a) providing input data for each of a set of input
parameters, an algorithm, and a set of target parameters,
wherein at least a portion of said input data are individual to
said user, and wherein said target parameters are parameters
related to acoustical properties of the hearing device;
b) determining target data for each of the set of target
parameters by applying said algorithm to said input data;
c) designing a suitable three-dimensional shape of said
otoplastic in dependence of said target data by means of an
otoplastic modelling software;
d) manufacturing said otoplastic according to said
suitable three-dimensional shape; and
e) obtaining property data using said otoplastic, wherein
said property data are descriptive of properties related to said
manufactured otoplastic, and at least a portion of said property
data is descriptive of properties related to said otoplastic
inserted in an ear of said user, said property data being at least
one of:
a rest volume between an otoplastic and the ear
drum of the user,
a feedback threshold of the hearing device,
an active insertion gain,
a passive insertion gain, and
an acoustic mass of a vent; and
g) adjusting a transfer function of the hearing device
dependent on the property data, wherein steps b)-e) are
repeated at least once using the adjusted transfer function.
21. A method of adjusting a transfer function of a
hearing device comprising an otoplastic individually shaped for
a user intended to be using the hearing device to the needs of
the user, said method comprising the steps of
a) providing input data for each of a set of input
parameters, an algorithm, and a set of target parameters,
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Application 13/133,989
wherein at least a portion of said input data are individual to
said user, and wherein said target parameters are parameters
related to acoustical properties of the hearing device;
b) determining target data for each of the set of target
parameters by applying said algorithm to said input data;
c) designing a suitable three-dimensional shape of said
otoplastic in dependence of said target data by means of an
otoplastic modelling software comprising the steps of:
kl) designing a preliminary three-dimensional
shape of said otoplastic;
k2) determining for said preliminary three-
dimensional shape data for said target
parameters, said data being referred to as achieved data;
k3) repeating steps kl) and k2) until a preliminary
three-dimensional shape is found that fulfills a pre­
determined criterion indicative of a sufficient agreement
between said achieved data and said target data; and
k4) selecting the preliminary three-dimensional
shape found in step k3) as a suitable three-dimensional
shape of said otoplastic;
d) manufacturing said otoplastic according to said
suitable three-dimensional shape; and
e) adjusting a transfer function of the hearing device
dependent on the achieved data, wherein steps b)-d) are
repeated at least once using the adjusted transfer function.
Appeal Br. 18, 21—23 (Claims App’x).
REFERENCES
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Shennib US 5,825,894 Oct. 20, 1998
Hessel et al. (“Hessel”) US 6,731,997 B2 May 4, 2004
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Application 13/133,989
Deichmann et al. US 2004/0107080 A1 June 3,2004
(“Deichmann”)
Nicolai et al. (“Nicolai”) US 2007/0135862 Al June 14, 2007
Harvey Dillon, NAL-NL1: A new procedure for fitting non-linear hearing
aids, 52:4 The Hearing Journal (1999) (“Dillon”).
REJECTIONS
Claims 1—7, 11, 13, 16, and 17 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Hessel and Dillon. Final
Act. 11-20.
Claims 18—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Hessel, Dillon, and Nicolai. Final Act. 20—25.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Hessel, Dillon, and Deichmann. Final Act. 25—26.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Hessel, Dillon, and Shennib. Final Act. 26.
Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Hessel and Nicolai. Final Act. 27—29.
Our review in this appeal is limited only to the above rejections and
issues raised by Appellant. We have not considered other possible issues
that have not been raised by Appellant and which are, therefore, not before
us. See 37 C.F.R. § 41.37(c)(l)(iv) (2016).
ISSUES
1. Whether the Examiner errs in finding the combination of Hessel
and Dillon teaches or suggests “amending said algorithm in dependence of
said property data,” as recited in claim 1?
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2. Whether the Examiner errs in finding the combination of Hessel,
Dillon, and Nicolai teaches or suggests “adjusting a transfer function of the
hearing device dependent on the property data,” as recited in claim 18?
3. Whether the Examiner errs in finding claim 21 is obvious over the
combination of Hessel and Nicolai?
ANALYSIS
Issue 1 — Claim 1
The Examiner finds claim 1 is obvious over the combination of Hessel
and Dillon. Final Act. 11—14. Specifically, the Examiner finds Dillon’s
description of “[ujpdating frequencies [(inputs)] in the fitting to achieve a
desired prescription” suggests amending said algorithm, as claimed. Final
Act. 14 (citing Dillon 14, col. 3, second bullet) (emphasis omitted).
Appellant disputes the Examiner’s factual findings. Specifically,
Appellant argues “merely changing the cross-over frequencies does not
result in an amendment to the underlying software” or “change ‘a functional
dependency of the target data on the input data. ’” Appeal Br. 9.
We are unpersuaded. Claim 1 clarifies amending said algorithm
“comprises at least one of. [1] defining an amended set of input parameters,
and [2] defining an amended set of target parameters, wherein a functional
dependency of the target data on the input data is changed.” Appeal Br. 18
(Claims App’x) (emphasis added).
The portion of Appellant’s Specification cited by Appellant (Appeal
Br. 20) as supporting this limitation discloses that to determine what should
be amended about the algorithm, “at least a portion of— said input data 1
[or] — said target data 3” is evaluated. Spec. 19,1. 17— 20,1. 4; see also
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Spec. 24,11. 7—22. Based on the cited portion of the Specification, we
determine the plain meaning of “at least one of’ in the disputed limitation
requires defining at least one of an amended set of input parameters and an
amended set of target parameters, but does not require defining an amended
set of both the input parameters and the target parameters. That is, we
determine the plain meaning of “at least one of,” as recited in the claim, is
disjunctive rather than conjunctive. But see SuperGuide Corp. v. DirecTV
Enters., Inc., 358, F.3d 870, 886 (Fed. Cir. 2004). Appellant, in turn, fails to
demonstrate this interpretation is inconsistent with or unreasonable in view
of the Specification.
Accordingly, “amending said algorithm,” as set forth in claim 1, reads
on merely requiring “defining an amended set of input parameters.”
Because we agree with the Examiner’s finding that Dillon suggests allowing
a user to change cross-over frequencies input to the NAL-NL1 software
algorithm (Final Act. 14; Ans. 6), we agree that Dillon teaches “defining an
amended set of input parameters” and, thus, further teaches “amending said
algorithm,” as claimed. We find Appellant’s argument that “changing the
cross-over frequencies does not change ‘a functional dependency of the
target data on the input data’” (Appeal Br. 9) unpersuasive, because in view
of the claim interpretation described above, the Examiner need only
demonstrate Dillon teaches “defining an amended set of input parameters,”
but not also “an amended set of target parameters,” as claimed.
Appellant further argues Dillon fails to suggest “amending said
algorithm in dependence of said property data, wherein said amending
occurs between an iterative determination of target data,” as claimed
(Appeal Br. 18 (Claims App’x)), because Dillon “yield[s] merely a single
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Application 13/133,989
determination of target data and a changing of the crossover frequencies
based on already determined information.” Appeal Br. 10.
We are unpersuaded. The Examiner finds, and we agree, that “when
Dillon mentions changing the cross-over frequency to one that it achievable,
it implies that a proposed changed frequency is input for the software, and at
least one more iteration of the software is conducted to obtain results for a
hearing aid that is being designed.” Ans. 6. Appellant fails to persuasively
rebut the Examiner’s finding.
As discussed, Appellant has not shown error in the Examiner’s factual
findings or conclusion of obviousness from the proffered combination.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of
independent claim 1. Dependent claims 2—7, 11, 13, 16, 17, and 19, are not
argued separately and so the rejection of these claims is sustained for the
reasons given for independent claim 1. See Appeal Br. 12.
Issue 2 — Claim 18
Appellant argues Nikolai does not suggest “adjusting a transfer
function of the hearing device dependent on the property data” (Appeal
Br. 12) because “Nicolai adjusts a transfer function based on characteristics
determined by a perception model. In contrast, claim 18 recites adjusting
transfer functions based on property data determined by using a
manufactured otoplastic.” Appeal Br. 13.
The Examiner responds by finding that Nicolai teaches that “more
than a perception model can, and is, used to adjust transfer functions”
(Ans. 9) because Nicolai also describes adjusting the device based on
“number of channels, T-levels, C-levels, gain, frequency of stimulation,
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Application 13/133,989
compression characteristic, type of strategy, etc.” (Ans. 10 (citing Nicolai
126)). The Examiner also states “[rjegardless, a perception model would
still be ‘property data’ because it is ‘descriptive’ of properties of the hearing
system device manufactured by Nicolai.” Ans. 9.
We find Appellant’s argument persuasive because the Examiner does
not establish how Nicolai specifically teaches or suggests adjusting a
transfer function of the hearing device dependent on properties related to
said manufactured otoplastic. Although we agree with the Examiner that
Nicolai teaches adjusting the device based on other factors, such as, “number
of channels, T-levels, C-levels, gain, frequency of stimulation, compression
characteristic, [and] type of strategy,” the Examiner does not explain how
these characteristics teach properties related to the manufactured otoplastic.
We also disagree with the Examiner that Nicolai’s perception model
specifically teaches “property data” as claimed.
Accordingly, we are persuaded of Examiner error and do not sustain
the rejection of claim 18 under 35 U.S.C. § 103(a) as being unpatentable
over Hessel, Dillon, and Nicolai. We do not sustain the rejection of
dependent claim 20 for similar reasons.
Issue 3 — Claim 21
Appellant argues claim 21 is patentable over Hessel and Nicolai
because “claim 21 comprises limitations substantially similar to those in
claim 18.” Appeal Br. 21.
We are unpersuaded. Appellant argues the rejection of claim 18 is
erroneous because Nikolai does not suggest “adjusting transfer functions
based on property data determined by using a manufactured otoplastic,” as
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recited in claim 18. Appeal Br. 13. Appellant fails to establish, and we do
not find, claim 21 includes a “substantially similar” limitation. Appeal
Br. 21. Thus, the arguments presented are not applicable to claim 21. For
this reason, we sustain the rejection of claim 21 and of dependent claim 22.
Claims 12 and 14
Claims 12 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hessel, Dillon, and Deichmann and Hessel, Dillon, and
Shennib, respectively. Final Act. 25—26. Appellant does not argue claims
12 and 14 separately, other than to contend that Deichmann and Shennib
“fails to correct the above-noted deficiencies” in the rejection of claim 1.
Appeal Br. 15. Because we do not determine the rejection of claim 1
deficient, we affirm the rejection of these claims.
DECISION
We affirm the Examiner’s decision rejecting claims 1—7, 11—14, 16,
17, 19, 21, and 22 under 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting claims 18 and 20 under
35 U.S.C. § 103(a).
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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