Ex Parte Shuttleworth et al

Patent Trial and Appeal Board

Feb 11, 2014

11757798 (P.T.A.B. Feb. 11, 2014)

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.
11/757,798 06/04/2007 Timothy J. Shuttleworth HARM0137PUS1 3328
109676 7590 02/11/2014
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
EXAMINER
LAO, LUNSEE
ART UNIT PAPER NUMBER
2655
MAIL DATE DELIVERY MODE
02/11/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte TIMOTHY J. SHUTTLEWORTH, RICHARD A. KREIFELDT,
C. REX REED, and BRIAN R. ELLISON
__________

Appeal 2011-007355
Application 11/757,798
Technology Center 2600
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims on the grounds of anticipation and obviousness. We have
jurisdiction under 35 U.S.C. § 6(b).
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STATEMENT OF CASE
The Specification discloses:
An ambient noise compensation system [which]
determines an ambient noise level of a listening area. The
ambient noise level may be calculated from the differences
between a desired audio signal in the listening area, a measured
background noise level in the listening area, and measured
acoustic characteristics of the listening area. Based on the
ambient noise level, the system adjusts a level of the desired
audio signal so that it is audible over undesirable noise.

Spec. 4 ¶ [0013].

Individual claims have not been argued separately by Appellants and
therefore we select Claim 1 as representative of the rejections before us.
1. A method of compensating for noise in a listening area,
comprising:
measuring characteristics of substantially constant background noise
in the listening area;
storing the characteristics of substantially constant background noise
in the listening area,
projecting a test signal into the listening area;
measuring acoustic characteristics of the listening area;
storing the acoustic characteristics of the listening area;
projecting a desired audio signal into the listening area;
detecting an ambient sound in the listening area;
calculating an ambient noise level, where the calculating includes:
examining the ambient sound in the listening area with regard to the
stored acoustic characteristics of the listening area and with regard to the
stored characteristics of substantially constant background noise in the
listening area; and
adjusting a level of the desired audio signal in response to the ambient
noise level.

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Cited References

Op de Beek et al. US 4,845,758 Jul. 4, 1989
Hamabe et al. US 5,426,703 Jun. 20, 1995
Ohki et al. US 5,689,572 Nov. 18, 1997
Brennan et al. US 6,606,391 B2 Aug. 12, 2003
Yoshino et al. US 7,054,448 B2 May 30, 2006

Grounds of Rejection
1. Claims 1-3 and 6-12 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Hamabe.
2. Claims 1, 3, 6, 9-11, 13, 14, and 16-19 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Yoshino.
3. Claims 2, 7, 8, and 12 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yoshino in view of Ohki.
4. Claim 4 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino in view of Op de Beek.
5. Claim 5 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshino in view of Brennan.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages 3-
11. The following facts are highlighted.
1. Figure 3 of the Specification is reproduced below.
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Figure 3 shows

In block 305 of the calibration phase, the a listening area is
prepared by controlling the sources of noise so that undesired
noise is reduced to a minimum, preferably as close to silent as
possible. Thus, the only sound present is a background noise. .
. .

In block 307 of FIG. 3, the background noise in the
listening area is then detected by microphone 150 and conveyed
via the microphone signal 155 to the noise compensation unit
120. In block 308, the microphone signal is analyzed to
determine the level of the background noise. This level is
considered an offset that indicates the amount of background
noise in the listening area. This analysis may be done for each
of several frequency bands, and a set of offsets—one for each
frequency band-may be measured. These offsets may be used
later to analyze sounds detected in the listening area during the
operation phase 220.

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In block 310 of FIG. 3, a pink-noise test signal is
projected into the listening area. This pink noise test signal
may span a range of about 20 Hz to 20 kHz. Other test signals
may be used, such as a series or combination of discrete tones,
or a spectrum of white noise. In the setup depicted in FIG. I,
the test signal is provided to the noise compensation unit 120 as
source signal 118. Speakers 130 project the test signal into the
listening area 101. The test signal is then detected by
microphone 150 and a detected version of the test signal is
returned in the microphone signal 155 to the noise
compensation unit 120.

Thus, during block 310 the known, original test signal
may be used as the source signal 118, and the detected test
signal may be received as the microphone signal 155. Before
being detected by the microphone, the test signal is naturally
modified in the listening area by the acoustic properties of the
listening area. These acoustic properties are generally
frequency-dependent, as noted above. Thus, different
frequency bands of the test signal may experience different
modifications. For example, some frequency ranges may be
more attenuated than others in the listening area. Additional
differences between the original and perceived test signal may
also arise from imperfections in construction or placement of
the transmitting equipment, such as speakers 130 from FIG. 1.
Still further, the perceived test signal may be different from the
original test signal because of any background noise present in
the listening area.

Block 320 shows detection of the perceived test signal as
a microphone signal, such as the microphone signal 155 from
FIG. 1. The microphone signal includes all the differences
from the original test signal. Like the microphone signal
detected in block 307, the microphone signal detected in block
320 includes background noise in the listening area.
Additionally, the microphone signal detected in block 320 also
includes the originally projected test signal, plus any
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modifications arising from the acoustic properties of the
listening area.

In block 330, the microphone signal is compared with the
original test signal and with the background-noise offsets
(measured in blocks 307 and 308) to determine the differences
between the original test signal and the microphone signal.
This comparison may be done separately for each frequency
band in a set of frequency bands that span the audible spectrum.

Block 340 depicts the calculation of relative gain factors
that help characterize the listening area. The gain factors and
the background-noise offsets (measured in blocks 307 and 308)
relate the detected test signal to the original test signal. Like
the background-noise offsets, the gain factors may be calculated
for a set of frequency bands. The gains may be used later to
analyze sounds detected in the listening area during the
operation phase 220.

The overall calibration phase 210 may be implemented to
measure calibration information—such as the gain factors and
offsets—in such a way that the original test signal can be
substantially recovered when the calibration information is
applied to the perceived test signal. As discussed above, the
offsets for the various frequency bands indicate the background
noise in the listening area. Similarly, the gain factors for the
various frequency bands are determined so that they represent
an acoustic transfer function of the listening area. Other
information may be obtained instead of or in addition to the
gain and offset information. For example, phase-shift
information, echo and reverberation information and nonlinear
differences between the original and perceived test signal may
also be recorded. The gain factors, offsets, and any other
calibration results may be stored in block 350 for later use
during the operation phase.

Spec. 10-12 ¶¶s [0035]-[0042].

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Discussion
ISSUE
The Examiner finds that Hamabe teaches each element claimed.
(Ans. 3-4.)
Appellants argue that Hamabe fails to teach “‘projecting a desired
audio signal into [a] listening area’ and ‘adjusting a level of the desired
audio signal in response to the ambient noise level.’” (Br. 10.) Appellants
further argue that, “Hamabe et al. does not perform any processing at all on
‘a desired audio signal’ that is projected into a listening area and in fact, no
such audio signal is shown in FIG. 1A of Hamabe et al.” (id.).
The issue is: Does the cited prior art support the Examiner’s finding
that the claimed subject matter is anticipated by Hamabe?

PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
In order for a prior art reference to serve as an anticipatory reference,
it “must disclose every limitation of the claimed invention, either explicitly
or inherently.” See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
To anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg.
Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001).
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
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burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).

ANALYSIS
Anticipation Hamabe
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants’ arguments as set forth in the Answer. We find
that the Examiner has provided evidence to support a prima facie case of
anticipation. We provide the following additional comments.
In response to Appellants’ argument that Hamabe fails to teach
“‘projecting a desired audio signal into [a] listening area’” (Br. 10), the
Examiner argues that Hamabe projects “a desired audio signal (projecting a
desired audio signal reads on, the speaker generate[s] sound to cancel
background noise which designer designs the desired audio signal (see col. 5
line 11-20)) into the listening area.” (Ans. 12.) Hamabe discloses that a
“noise eliminator comprises a plurality of microphones for detecting residual
noise signals, [and] a plurality of loud speakers for generating noise
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eliminating sound for interference with the residual sound noise.” (Col. 1, ll.
15-20, col. 2, ll. 50-60 and 3, ll. 12-20.) Appellants have not established
with appropriate evidence that the noise cancelling sound of Hamabe is not
within the audio sound range. Attorney argument cannot take the place of
evidence. Therefore, we agree with the Examiner that the preponderance of
the evidence supports that the Examiner’s position that Hamabe discloses
projecting sound (an audio signal) into the listening area, as claimed.
Appellants further argue that Hamabe fails to disclose “‘adjusting a
level of the desired audio signal in response to the ambient noise level.’”
(Br. 10.) We are not persuaded. Hamabe discloses that a “noise generation
condition detecting means is provided for detecting a signal indicative of the
noise generation condition of a noise source,” such as engine noise. (Col. 5,
ll. 1-5.) In addition, in Hamabe,
[M]icrophones 8a to 8h outputs noise signals e1 to e8 indicative
of residual noise pressures within the passenger room 6,
respectively.
The output signal of the crank angle sensor 5 and the
output signals e1 to e8 of the microphones 8a to 8h are supplied
to a controller 10 (control means). The controller 10 outputs
drive signals Y1 to Y4 to the four loud speakers 7a to 7d,
[i]ndividually, so that the loud speaker 7a to 7d can generate
sounds (noise eliminating sounds) to cancel the residual noise
within the passenger room 6.

(Hamabe, col. 5, ll. 20-30.) Therefore, Hamabe adjusts a level of the desired
noise eliminating audio signal from the speakers via the controller in
response to the ambient noise level or engine noise. (Ans. 12.)
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In view of the above, and the Examiner’s arguments of record, we do
not find Appellants’ rebuttal evidence to be sufficient to overcome the
rejection and the anticipation rejection is affirmed for the reasons of record.

Obviousness Yoshino
ISSUE
The Issue is: Do the cited references support the Examiner’s
conclusion that the claimed subject matter is obvious?

ANALYSIS
Appellants argue that
Yoshino et al. does not teach or disclose the limitations of
measuring and storing acoustic characteristics of a listening
area, including the characteristics of substantially constant
background noise in the listening area, and calculating an
ambient noise level with regard to the stored characteristics of
the listening area and with of substantially constant background
noise. In fact, Yoshino et al. does not teach or disclose anything
related to directly calculating or measuring ambient noise levels
because all measurements or comparisons in Yoshino et al. are
based on S/N ratios and not ambient noise levels directly. The
Examiner acknowledges that Yoshino et al. does not teach
measuring characteristics of substantially constant background
noise in the listening area, and because Yoshino et al. deals
solely with S/N ratios, it cannot reasonably be said that it would
have been obvious to one of ordinary skill in the art to
incorporate into Yoshino et. al. an absolute measurement of the
acoustic characteristics of the listening area and substantially
constant background noise in the listening area in order to
adjust the level of an input audio signal.

(Br. 14.) We are not persuaded. We agree with the Examiner that

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Yoshino disclose[s] compensating for noise in a listening area,
comprising: measuring characteristics of substantially
background noise in the listening area (reads on S/N Ratio and
see figs.1, 6 and abstract); storing (by computer and see fig. 15)
the characteristics of substantially background noise in the
listening area (see fig.6)(see col. 3 line 30-67); projecting (6FL-
6SBR in fig.1) a test signal (pink noise reads on the test signal)
into the listening area; measuring(see fig. 1 ( 8) (2)) acoustic
characteristics of the listening area; storing(by computer for
calculation to control the listening area) the acoustic
characteristics of the listening area; projecting(6FL-6SBR) a
desired audio signal (a desired audio signal reads on, the
speaker generate collected sound data OM to reduce
background noise) into the listening area; detecting(8) an
ambient sound in the listening area; calculating (see figs. 7-14)
an ambient noise level(see col. 2 1ine 19-col. 3 1ine 59), where
the calculating includes: examining (see figs. 7-15) the ambient
sound in the listening area with regard to the stored acoustic
characteristics of the listening area and with regard to the stored
characteristics of substantially background noise in the listening
area(see col. 6 line 49- col. 7 line 67); and adjusting (see SG1-
SG8 in fig.3 and see fig. 14)) a level of the desired audio signal
in response to the ambient noise level (see col. 2 line 14-col. 3
line 67 and col. 9 line 49-col. 10 line 67).

(Ans. 13-14.) In particular, with respect to the limitation of “measuring and
storing acoustic characteristics of a listening area,” including the
characteristics of substantially constant background noise in the listening
area), Yoshino discloses
According to another aspect of the present invention,
there is provided a program storage device readable by a
computer, tangibly embodying a program of instructions
executable by the computer to control the computer to
function as an automatic sound field correcting device for
applying signal processing onto audio signals of plural
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channels and outputting processed audio signals to
corresponding plural speakers, including: a noise measuring
unit for measuring environmental noise level; a signal level
determining unit for determining a measurement signal level
based on the environmental noise level; and a correcting unit
for outputting a measurement signal having the determined
measurement signal level to perform automatic sound field
correction.

(Col. 3, ll. 30-45 (emphasis added).) Thus, the storage device of Yoshino
stores measured environmental acoustic noise from the listening area.
Appellants argue that “Yoshino et al. does not teach or disclose
anything related to directly calculating or measuring ambient noise levels
because all measurements or comparisons in Yoshino et al. are based on S/N
ratios and not ambient noise levels directly.” (Br. 14.) Claim 1 before us
uses the transitional language “comprising,” and the calculating step uses the
transitional phrase “includes.” Both of these claim terms make the claim
open to additional steps, as “include” means the same as “comprise.”
Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1344-1345
(Fed. Cir. 2003) (“‘Comprising is a term of art used in claim language which
means that the named elements are essential, but other elements may be
added and still form a construct within the scope of the claim.’ . . . The
word ‘include’ means the same thing.”). Therefore, we find no requirement
in claim 1 that ambient noise be measured or compared directly. Yoshino is
measuring and correcting for environmental noise and whether or not this is
done through an intermediate S/N calculation is of no consequence.
(Abstract; Col. 10.) Finally, Appellants argue that Yoshino does not adjust
an audio signal in response to environmental noise. (Br. 16.) Again, we are
not persuaded.
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Claim 1 does not specify the nature of the audio signal or which
acoustic characteristic is adjusted. The Examiner has indicated that in
Yoshino, the speakers generate collected sound data DM to reduce
background noise (Ans. 14; Yoshino, col. 8, ll. 7-47.) Adjustments and
sound corrections are made based upon the sound data collected. (Id.)
Appellants provide no response or evidence to rebut the Examiner’s
argument that Yoshino adjusts an audio signal.
Appellants argue that Yoshino does not disclose calculating an
ambient noise level with regard to the stored characteristics of the listening
area and of substantially constant background noise. The Examiner admits
that Yoshino does not disclose a constant background noise, but finds that
Yoshino does disclose the treatment of environmental noise in a listening
area, and concludes that one of ordinary skill in the art would have
recognized that Yoshino could deal with any form of environmental noise
including constant background noise. (Ans. 7.) We agree. Appellants have
provided no argument or evidence that one of ordinary skill in the art would
have understood that Yoshino would not have been unable to deal with
constant background noise, in rebuttal to the Examiner’s argument.
Appellants do not present argument with respect to rejections 3-5,
other than that presented for Yoshino. (Br. 16-17.) These rejections are also
affirmed for the reasons of record.

CONCLUSION OF LAW
The cited references support the Examiner’s anticipation and
obviousness rejections. All rejections are affirmed for the reasons of record.
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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).

AFFIRMED

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