Ex Parte Schott

Board of Patent Appeals and Interferences

Dec 1, 2008

09973338 (B.P.A.I. Dec. 1, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WAYNE MILTON SCHOTT
_____________

Appeal 2008-4733
Application 09/973,338
Technology Center 2800
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Decided: December 1, 2008
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Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO,
and ELENI MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

INVENTION
Appellant’s claimed invention is directed to an acoustical enclosure (300)
divided into a first and a second chamber (330, 340) by a partitioning wall (320
and having a first speaker (350) mounted on the partitioning wall (320) within the
acoustical enclosure (300) and a second speaker (360) mounted to an exterior wall
(370) of the first chamber (330) and having an internal vent (380) within
partitioning wall (320) and an external vent (395) in the exterior wall (390) of the
second chamber (340) (Fig. 3 and Spec. 8:19-10:12).
Claim 1, reproduced below, is representative of the subject matter on appeal:
1. An acoustical enclosure comprising:
a speaker box comprising walls that enclose an acoustic chamber;
a partitioning wall coupled to interior surfaces of said walls of said speaker
box, said partitioning wall dividing said acoustic chamber into a first chamber and
into a second chamber;
wherein at least one wall of said walls that enclose said acoustic chamber
comprises portions that form an external vent to said second chamber;
a first speaker mounted within said partitioning wall, wherein a front portion
of said first speaker has access to said first chamber and a back portion of said first
speaker has access to said second chamber; and
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a second speaker mounted within one of said walls that enclose said acoustic
chamber, wherein a front portion of said second speaker has access to air outside
said speaker box and a back portion of said second speaker has access to said first
chamber.

THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
Festa US 4,437,539 Mar. 20, 1984

Tanaka US 5,850,460 Dec. 15, 1998

The following rejections are before us for review:
1. The Examiner rejected claims 1 under 35 U.S.C. § 102(b) as being
anticipated by Festa.
2. The Examiner rejected claims 1-20 under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as being obvious
over Tanaka.

ANTICIPATION
ISSUE
Claim 1
Appellant contends that Festa’s speaker 50 (i.e., second speaker) “is not
‘mounted . . . wherein . . . a back portion of said second speaker has access to said
first chamber’” as claimed (App. Br. 5). Appellant notes that Festa teaches a
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speaker 50 that is “‘sealed so as to prevent any emanating sound from entering into
chamber 34,’” and thus, has no access to the second chamber (App. Br. 5-6).
The Examiner responds that “access” “has several definitions including,
within, inside, entering, communicating, touching, and approaching” (Ans. 7). The
Examiner explains that Festa’s Figure 2 shows that the back of the second speaker
(i.e., speaker 50) “is within, inside, communicating with, or touching the first
chamber (i.e., chamber 34), and therefore has access to the first chamber” (Ans. 7).
Has the Appellant shown that the Examiner erred by determining that
Festa’s second speaker (i.e., speaker 50) has “access” to the first chamber (i.e.,
chamber 34) as claimed?
FINDINGS OF FACT
The relevant fact includes the following:
1. The term “access” is broadly defined as “approaching, entering, exiting,
communicating with, or making use of.” The Free Dictionary, at
http://www.thefreedictionary.com/access (last visited 10/31/2008).

PRINCIPLES OF LAW
During ex parte prosecution, claims must be interpreted as broadly as their
terms reasonably allow since Appellants have the ability during the administrative
process to amend the claims to avoid the prior art. In re Zletz, 893 F.2d 319, 322
(Fed. Cir. 1989).

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ANALYSIS
Has the Appellant shown that the Examiner erred by determining that
Festa’s second speaker (i.e., speaker 50) has “access” to the first chamber
(i.e., chamber 34) as claimed?

The term “access” is broadly defined as “approaching, entering, exiting,
communicating with, or making use of” (Finding of Fact 1). Thus, under the
broadest reasonable interpretation Festa’s speaker 50 has “access” to chamber 34
by “making use of” the chamber’s 34 space (i.e., being placed within chamber 34).

CONCLUSION
The Appellant has not shown that the Examiner erred by determining that
Festa’s second speaker (i.e., speaker 50) has “access” to the first chamber (i.e.,
chamber 34) as claimed.

ANTICIPATION, OR IN THE ALTERNATIVE, OBVIOUSNESS
ISSUES
Claims 1-20
1. Speaker
With respect to claims 1, 9, and 11, Appellant contends that Tanaka’s
element 102 is not a “speaker” because it is a passive radiator and not an electro-
acoustic transducer as implicitly described in Appellant’s Specification by
disclosing that the speakers are electrically coupled in phase (App. Br. 7).
Furthermore, regarding claims 3, 12, and 19, Appellant contends that the passive
radiator 102 has no electrical drive and therefore cannot be connected electrically
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in phase with anything (App. Br. 8). With respect to claims 5, 14, and 17,
Appellant contends that due to the passive radiator the Examiner has not shown
increase in volume of the first chamber (App. Br. 9).
The Examiner responds that the terms “electroacoustic transducer” or
“active speakers” are not recited in the claims, and thus, the claim language does
not preclude a “speaker” with passive emission of sound (Ans. 7-8). The Examiner
further states that the terms “speaker” or “radiator” are synonymous because they
both emit or send out sound (Ans. 8). The Examiner states that Tanaka teaches a
passive radiator that emits noise in the form of bass sounds (Ans. 8). The
Examiner further responds that Tanaka’s Figures 16-17 show an electrical circuit
diagram of how the two speakers (i.e., speakers 101 and 102) are connected in
phase electrically wherein electricity goes through at least one of the speakers (i.e.,
speaker 101) (Ans. 9). The Examiner further states that the claim language does
not require that both speakers are driven electrically (Ans. 9). Finally, the
Examiner asserts that the volume in a first chamber (i.e., chamber 106) is increased
due to the presence of the second speaker (i.e., speaker 102) within one of the
walls (i.e., wall 103a) that encloses the acoustic chamber (Tanaka, col. 2, ll. 12-20
and Ans. 6).
Has the Appellant shown that the Examiner erred by determining that a
“passive radiator” which is not an electroacoustic transducer constitutes a
“speaker” as claimed?
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2. Vents
With respect to claims 2, 4, 6, 8, 10, 13, 15, 16, 18, and 20, Appellant further
contends that Tanaka does not disclose providing an external vent (App. Br. 7).
Appellant also contends that Tanaka does not teach that the partitioning wall
contains an uncovered internal vent, but rather that Tanaka teaches an additional
wall with a port between the passive radiator and the driver (App. Br. 8).
The Examiner states that Tanaka acknowledges that a conventional speaker,
such as the one disclosed in Figure 15, has the drawback of unwanted vibration and
resonance and that the reason for altering the conventional speaker is to reduce the
unwanted vibration (col. 3, ll. 61-67) (Ans. 9). Furthermore, the Examiner states
that Tanaka teaches variations of a conventional speaker by adding ports (col. 7, l.
60-col. 8, l. 2) (Ans. 9). The Examiner reasoned that much like a pot having a vent
hole allowing steam to escape and reduce rattling, the added ports in Tanaka would
reduce unwanted vibration (Ans. 9-10).
More specifically, the Examiner responds that Tanaka teaches that it would
have been obvious to alter the typical/conventional bandpass speaker (Fig. 15, col.
1, ll. 39-51) by placing a port in a side wall to which no driver unit is installed (col.
7, l. 60-col. 8, l. 2), and thus, it would have been obvious to one skilled in the art to
create an external port by inserting a port in the wall to the right hand side of the
second chamber (i.e., chamber 105) (Ans. 8). The Examiner articulated as
motivation that the port would be an outlet allowing vibration to escape (Ans. 8).
The Examiner further responds that Tanaka also teaches that it would have been
obvious to form a port in a divider (i.e., divider 104) placed between the two
speakers (i.e., internal port) (col. 7, l. 60-col. 8, l. 2) (Ans. 9).
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Has the Appellant shown that the Examiner erred by modifying the speaker
arrangement as taught by Tanaka with the additional internal and external ports as
suggested by Tanaka’s variations for the articulated rationale of reducing
vibration?
FINDINGS OF FACT
The relevant facts include the following:
2. Appellant’s claims do not recite the terms “electroacoustic transducer” or
“active speakers” (claims 1-20).
3. Tanaka teaches an electrical circuit diagram (Figures 16-17) of how the two
speakers (i.e., speakers 101 and 102) are connected in phase electrically
wherein electricity goes through at least one of the speakers (i.e., speaker
101).
4. The claims do not require that both speakers are driven electrically (claims
1-20).
5. Tanaka teaches a first chamber (i.e., chamber 106) and a second speaker
(i.e., speaker 102) within one of the walls (i.e., wall 103a) that encloses the
acoustic chamber (Fig. 15).
6. Tanaka teaches that the vibration mass (i.e., volume) is increased at the
location of the passive radiator (i.e., first chamber) (col. 2, ll. 14-20).
7. Tanaka teaches that a conventional bandpass speaker system (Figure 15 and
col. 1, ll. 31-50), has the drawback of unwanted vibration and resonance and
that it is desirable to reduce the unwanted vibration (col. 3, ll. 61-67).
8. Tanaka teaches variations of a conventional speaker system by adding ports
in a side wall where no driver is installed (i.e., in Figure 15 adding an
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external vent in the wall to the right hand side of the second chamber 105)
(col. 7, ll. 65-67) and by adding ports in a divider placed between the passive
radiator and the driver unit (i.e., in Figure 15 internal port placed in divider
wall 104 between the passive radiator 102 and driver unit 101) (col. 7, l. 67-
col. 8, l. 2).
9. Tanaka does not teach that the internal port is placed on an additional
divider, but only that the port is disposed on a divider between the two
speakers (col. 7, l. 67-col. 8, l. 2).

PRINCIPLES OF LAW
The Examiner’s articulated reasoning in the rejection must possess a rational
underpinning to support the legal conclusion of obviousness. In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006). The Supreme Court, citing In re Kahn, 441 F.3d at 988,
stated that “rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness.” KSR
Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741 (2007). However, “the analysis
need not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.” Id.
“The diversity of inventive pursuits and of modern technology counsels
against confining the obviousness analysis by a formalistic conception of the words
teaching, suggestion, and motivation, or by overemphasizing the importance of
published articles and the explicit content of issued patents.” KSR v. Teleflex, 127
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S. Ct. at 1731-32. “Rigid preventative rules that deny factfinders recourse to
common sense are neither necessary . . . nor consistent with” our case law. Id.
1742-43.
During ex parte prosecution, claims must be interpreted as broadly as their
terms reasonably allow since Appellants have the ability during the administrative
process to amend the claims to avoid the prior art. In re Zletz, 893 F.2d 319, 322
(Fed. Cir. 1989).
Although claims are interpreted in light of the specification, limitations from
the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993).

ANALYSIS
1. Has the Appellant shown that the Examiner erred by determining that a
“passive radiator” which is not an electroacoustic transducer constitutes a
“speaker” as claimed?

Appellant’s claims do not recite the terms “electroacoustic transducer” or
“active speakers,” and thus, the claim language does not preclude a “speaker” with
passive emission of sound (Finding of Fact 2). As stated supra, although claims
are interpreted in light of the specification, limitations from the specification are
not read into the claims. In re Van Geuns, 988 F.2d at 1184.
Furthermore, Tanaka teaches an electrical circuit diagram (Figures 16-17) of
how the two speakers (i.e., speakers 101 and 102) are connected in phase
electrically wherein electricity goes through at least one of the speakers (i.e.,
speaker 101) (Finding of Fact 3). The claims do not require that both speakers are
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driven electrically (Finding of Fact 4). Thus, Tanaka teaches that the two speakers
are connected in phase electrically as claimed.
Tanaka’s Figure 15 shows a first chamber (i.e., chamber 106) and a second
speaker (i.e., speaker 102) within one of the walls (i.e., wall 103a) that encloses the
acoustic chamber (Finding of Fact 5). Tanaka teaches that the vibration mass (i.e.,
volume) is increased at the location of the passive radiator (i.e., first chamber)
(Finding of Fact 6). Thus, Tanaka teaches an increase in volume of the first
chamber due to the presence of the second speaker within one of the walls of the
first chamber as claimed.

2. Has the Appellant shown that the Examiner erred by modifying the
speaker arrangement as taught by Tanaka with the additional internal and
external ports as suggested by Tanaka’s variations for the articulated
rationale of reducing vibration?

Tanaka teaches that a conventional bandpass speaker system (Figure 15) has
the drawback of unwanted vibration and resonance and that it is desirable to reduce
the unwanted vibration (Finding of Fact 7). Furthermore, Tanaka teaches
variations of a conventional speaker system by adding ports in a side wall where
no driver is installed (i.e., in Figure 15 adding an external vent in the wall to the
right hand side of the second chamber 105) and by adding ports in a divider placed
between the passive radiator and the driver unit (i.e., in Figure 15 internal port
placed in divider wall 104 between the passive radiator 102 and driver unit 101)
(Finding of Fact 8). We note that Tanaka does not teach that the internal port is
placed on an additional divider, but only that the port is disposed on a divider
between the two speakers, and thus, the divider wall 104 with a port would be
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disposed between the speakers 101 and 102 (Finding of Fact 9).
The Examiner’s articulated motivation to combine Tanaka’s variations
would be that the ports constitute outlets allowing vibration to escape and that
much like a pot having a vent hole allowing steam to escape and reduce rattling,
the added ports in Tanaka would reduce unwanted vibration (Ans. 8-10).
The Examiner’s articulated rationale for modifying Tanaka’s conventional
bandpass speaker system with the suggested Tanaka variations including internal
and external ports supports the legal conclusion of obviousness (i.e., reducing
unwanted vibration). KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741 (2007).

CONCLUSIONS OF LAW
1. The Appellant has not shown that the Examiner erred by determining that
a “passive radiator” which is not an electroacoustic transducer constitutes a
“speaker” as claimed.
2. The Appellant has not shown that the Examiner erred by modifying the
speaker arrangement as taught by Tanaka with the additional internal and external
ports as suggested by Tanaka’s variations for the articulated rationale of reducing
vibration.

ORDER
The decision of the Examiner to reject claim 1 under 35 U.S.C. § 102(b) as
being anticipated by Festa is affirmed. The decision of the Examiner to reject
claims 1-20 under 35 U.S.C. § 102(b) as being anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as being obvious over Tanaka is affirmed.
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No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

eld

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