David Welner et al.

Patent Trials and Appeals Board

Jul 22, 2019

12101185 - (D) (P.T.A.B. Jul. 22, 2019)

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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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