David Welner et al.Download PDFPatent Trials and Appeals BoardJul 22, 201912101185 - (D) (P.T.A.B. Jul. 22, 2019) Copy Citation 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. 12/101,185 04/11/2008 David WELNER Q107090 7675 23373 7590 07/22/2019 SUGHRUE MION, PLLC 2000 PENNSYLVANIA AVENUE, N.W. SUITE 900 WASHINGTON, DC 20006 EXAMINER NGUYEN, DUC MINH ART UNIT PAPER NUMBER 2651 NOTIFICATION DATE DELIVERY MODE 07/22/2019 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): PPROCESSING@SUGHRUE.COM USPTO@sughrue.com sughrue@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID WELNER and OLE ERIK TOFT1 ____________ Appeal 2018-004208 Application 12/101,185 Technology Center 2600 ____________ Before KALYAN K. DESHPANDE, CHARLES J. BOUDREAU, and SHARON FENICK, Administrative Patent Judges. FENICK, Administrative Patent Judge. DECISION ON APPEAL Introduction This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 23–28. Claims 1–18 are cancelled and claims 19–22 are allowed. We have jurisdiction under 35 U.S.C. § 6(b)(1). We affirm-in-part. 1 Appellants identify Widex A/S as the real party in interest. App. Br. 2. Appeal 2018-004208 Application 12/101,185 2 Invention Appellants’ invention relates to a battery alarm for a hearing aid. Spec. 1:15–18. The battery alarm provides a warning to the user that the battery cell is worn out and needs replacement. See id. at 1:33–2:6. Exemplary Claim Claims 23 and 27 are independent. Claim 23 is exemplary and reproduced below with italicization added for emphasis: 23. A method for operating a battery alarm of a hearing aid, said method comprising the steps of preventing said alarm from turning on during a predetermined warm-up time period beginning with the turning on of a power supply to said hearing aid, regardless of a charge state of a battery subsequent to said predetermined warm-up time period, detecting at least one of first and second battery voltage anomalies and providing a battery alarm if either of said first and second anomalies is detected. Rejections The Examiner rejects claims 23–26 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Killion (US 6,704,424 B2; Mar. 9, 2004) in view of Motegi (US 5,304,986; Apr. 19, 1994) and Boucher (US 4,088,986; May 9, 1978). Final Act. 3–5; Ans. 3–6. The Examiner rejects claims 27 and 28 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Killion in view of Motegi and Dix, Jr. (US 5,053,768; Oct. 1, 1991) (“Dix”). Final Act. 5–8; Ans. 6–8. Appeal 2018-004208 Application 12/101,185 3 ANALYSIS Claims 23–26 as Allegedly Obvious Over Killion, Motegi, and Boucher Claims 23–25 Independent claim 23 is rejected as obvious over the combination of Killion, Motegi, and Boucher. Final Act. 3–4. The Examiner relies on Killion in view of Motegi for a battery alarm of a hearing aid, and finds that Boucher’s teachings disclose the claimed “preventing said alarm from turning on during a predetermined warm-up time period beginning with the turning on of a power supply.” Id. (citing Boucher 4:24–25, which discloses “an alarm inhibit delay to prevent false alarms during the warm-up period of the sensor”); Ans. 9–11 (citing Boucher 2:64–3:1, which discloses “inhibit[ing] alarm condition sensing for a suitable time delay after the application of power to allow time for the semiconductor sensors to establish proper operating conditions”). Appellants acknowledge that “Boucher does provide a sensing delay at power on” and “does teach disabling alarms for a warm-up period,” but argue that Boucher pertains to a smoke, fire, and gas alarm system and is not relevant to the field of hearing aids. App. Br. 7–8; Reply Br. 8. We understand Appellants to be arguing that although Boucher teaches disabling an alarm for a warm-up time period after power-on, Boucher is not analogous art or that the Examiner has not described a motivation to combine the teachings of Boucher with Killion and Motegi. A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention, regardless of the problem addressed, or (2) the reference is reasonably Appeal 2018-004208 Application 12/101,185 4 pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Here, although Boucher and the claimed invention are drawn to different types of alarms, we find that Boucher’s teaching of inhibiting an alarm for a warm-up time period following power-on is reasonably pertinent to Appellants’ problem of “a temporary drop in the cell voltage” triggering the battery alarm too early and “giving the user a false impression of the remaining time until [a] hearing aid will actually stop functioning properly.” See Spec. 2:30–3:2. Thus, we find Boucher to be analogous to the claimed invention because its teachings are reasonably pertinent to the problem addressed by Appellants. Additionally, Appellants argue: The problem Boucher deals with is that a particular type of sensor used in Boucher needs time to warm up before it works properly. Boucher inhibits that sensor at startup to give it time to warm up. Hearing aids do not have those kinds of sensors. In particular, neither Killion nor Motegi use that type of sensor. So the delay Boucher teaches for this type of sensor is simply not useful in a Killion/Motegi system, and its adoption would not serve any purpose apparent from the teachings of the art. App. Br. 7. Appellants note that Boucher does disclose a low battery sensor other than the discussed warm-up time sensor, but they contend that Boucher’s low battery sensor is not prevented from turning on during a warm-up time, as recited in the claim. Id. at 8. Appellants further argue that “Boucher does not recognize the need addressed by the invention,” which is to “suspend[] alarms during a turn-on period out of concerns about fluctuations in the signal being sensed.” Id. Appellants conclude that one of ordinary skill in the art thus would not have adopted the teachings of Appeal 2018-004208 Application 12/101,185 5 Boucher in the Killion/Motegi combination as the Examiner proposes, absent hindsight. App. Br. 7–9; Reply Br. 8. In combining the references, the Examiner provides a motivation of “preventing false alarm[s],” which is not addressed by Appellants. Final Act. 4 (citing Boucher 4:24–25). We are not persuaded by Appellants of error in the Examiner’s conclusion that it would have been obvious to one of ordinary skill in the art at the time of the invention to combine Boucher’s teaching of inhibiting an alarm during a warm-up time period after power-on with Killion and Motegi’s battery alarm of a hearing aid in order to avoid false alarms. See App Br. 7–9; Reply Br. 8. The argument that Boucher’s low battery sensor is not inhibited during the warm-up time does not persuade us that one of ordinary skill would not have combined Boucher’s inhibition of alarms during warm-up with Killion and Motegi’s teachings of low battery alarms for a system in which a low battery alarm is inhibited during warm-up. Accordingly, we are not persuaded of error in the Examiner’s determination that the combination of Killion, Motegi, and Boucher teaches or suggests claim 23, including the prevention of the alarm from turning on during a warm-up period. Appellants make additional arguments that the alarms in Killion and Motegi are not prevented from turning on during a warm-up period. App. Br. 6; Reply Br. 4–7. These arguments are moot because, as discussed above, Boucher accounts for the claimed “preventing said alarm from turning on during a predetermined warm-up time period beginning with the turning on of a power supply.” Dependent claim 24 recites “wherein said alarm is prevented during said warm-up period even if either of said first or second battery voltage Appeal 2018-004208 Application 12/101,185 6 anomalies is detected during said warm-up period.” Appellants argue that the portion of Motegi cited in the Final Action fails to account for this claim limitation. App. Br. 9. However, Appellants acknowledge that Motegi teaches detecting first and second battery voltage anomalies. Ans. 10–11 (citing Motegi 3:10–61); Reply Br. 7. As discussed above with respect to claim 23, the combination of Boucher with Killion and Motegi teaches or suggests “preventing said alarm from turning on during a predetermined warm-up time period . . . regardless of a charge state of a battery.” Thus, we are not persuaded of error in the Examiner’s rejection of claim 24. Dependent claim 25 recites “wherein said first battery voltage anomaly is said battery voltage being below a threshold for a first period of time, and said second battery voltage anomaly is said battery voltage being below said threshold for a second period of time longer than said first period of time.” The Examiner finds that Motegi’s determination of whether the timer count value TO of a low voltage condition is smaller than or exceeds a predetermined time TL accounts for these limitations. Final Act. 4–5 (citing Motegi 3:20–25). Appellants do not dispute this finding. See App. Br. 10. Instead, Appellants make an argument again directed to the warm-up period, arguing that the Examiner “never explains how there is a warm-up period of time in Motegi where an alarm will not be generated even if these same triggering conditions [for the different types of low voltage alarms generated in Motegi] exist.” Id.; see also Reply Br. 7. As discussed above, the Examiner relies on Boucher for the teaching of disabling alarms during a warm-up period, which provides the teaching of a warm-up period in the asserted combination. Thus, we are not persuaded of error in the Examiner’s rejection of claim 25. Appeal 2018-004208 Application 12/101,185 7 For the foregoing reasons, we are not persuaded that the Examiner erred in rejecting claims 23–25 as obvious over Killion, Motegi, and Boucher. Claim 26 Claim 26 depends from claim 23, and recites “suspending new battery alarms for a predetermined period of time the duration of which is dependent at least in part on which of said first and second battery anomalies was detected.” The Examiner cites Motegi’s disclosure that “power supply battery 10 sustains voltage in excess of the LVA threshold level and operation leading to delivery of LVA signal is not carried out” and Motegi’s alarm reset switch 21. Final Act. 5 (citing Motegi 3:30–45); Ans. 13. Appellants argue that Motegi does not teach “two suspension periods which are (1) of different length and (2) are dependent on which alarm triggered the alarm that was just given off” (App. Br. 10), and that Motegi does not “suggest different alarm prevention periods depending on which alarm is sounded” (Reply Br. 8). We agree with Appellants that the disclosure of Motegi cited by the Examiner does not indicate that the battery alarm is suspended for a time duration dependent on which battery anomaly was detected. Although the Examiner indicates that “alarms A and B can be stopped temporarily or can be brought in to a pause” by reset switch 21 and then concludes that “the combined references of Killion, Motegi and Boucher do teach the steps . . .” (Ans. 13), we are unable to find a teaching in Motegi that teaches or suggests that such a suspension of the alarms is dependent on the type of Appeal 2018-004208 Application 12/101,185 8 battery anomaly detected. Thus, we determine that the Examiner erred in rejecting claim 26 as obvious over Killion, Motegi, and Boucher. Claims 27–28 as Allegedly Obvious Over Killion, Motegi, and Dix The Examiner rejects independent claim 27 as obvious over the combination of Killion, Motegi, and Dix. Final Act. 5–7. In particular, the Examiner relies on Motegi’s alarm reset and on Dix for the claim limitation “suspending new alarms for a predetermined delay time period after said alarm is given off, at least part of said predetermined delay time being after the given off alarm has ended, the duration of said predetermined delay period being dependent at least in part on which of said first and second battery voltage anomalies was detected.” Id. at 5–7; Ans. 14. The Examiner cites Motegi’s alarm pause switch 21, counter 22 for measuring a lapse of a predetermined time following resetting, and suppression of a signal during the operation of the counter. Final Act. 6. The Examiner also cites Dix’s disclosure of activating a first alarm when a golf cart has moved into a restricted area, and activating a second alarm, after the expiration of a predetermined time period of activation of the first alarm, if the cart has remained in the restricted area for the predetermined time period. Final Act. 7 (citing Dix, Abstr.); Ans. 14. Appellants argue that neither Motegi nor Dix accounts for the claim limitation “the duration of said predetermined delay period being dependent at least in part on which of said first and second battery voltage anomalies was detected.” See App. Br. 12–13. Specifically with respect to Dix, Appellants argue that “Dix teaches two alarm signals, and teaches a delay after the first alarm, but does not teach a different delay after the second Appeal 2018-004208 Application 12/101,185 9 alarm [has] sounded” and that the “delay period would not be different depending on which alarm was sounded” in the combination of the references. Id. at 13. We agree with Appellants that the disclosure of Dix cited by the Examiner does not indicate that new alarms are suspended for a time duration dependent on which anomaly was detected. Additionally, we reiterate that the Examiner does not cite a teaching in Motegi that teaches or suggests that a suspension of an alarm is dependent on the type of anomaly detected. Thus, we determine that the Examiner erred in rejecting claim 27, and for the same reason, dependent claim 28, as obvious over Killion, Motegi, and Dix. DECISION The Examiner’s rejection of claims 23–25 under 35 U.S.C. § 103(a) is affirmed. The Examiner’s rejections of claims 26–28 under 35 U.S.C. § 103(a) are reversed. 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-IN-PART Copy with citationCopy as parenthetical citation