UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/948,937 07/23/2013 John F. Holzrichter
24981 7590 01/28/2019
Lawrence Livermore National Security, LLC
LA WREN CE LIVERMORE NATIONAL LABORATORY
PO BOX 808, L-703
LIVERMORE, CA 94551-0808
UNITED ST A TES OF AMERICA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
IL-l 1835B 5616
EXAMINER
LERNER, MARTIN
ART UNIT PAPER NUMBER
2657
NOTIFICATION DATE DELIVERY MODE
01/28/2019 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):
llnl-docket@llnl.gov
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN F. HOLZRICHTER
Appeal2018-004809
Application 13/948,937
Technology Center 2600
Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's decision to reject claims 1 and 9, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
Claims 2-8 and 10-17 were cancelled.
We affirm.
1 Appellant identifies the real party in interest as "Lawrence Livermore
National Security, LLC and the United States of America as represented by
the United States Department of Energy (DOE)." App. Br. 2.
Appeal2018-004809
Application 13/948,937
CLAIMED SUBJECT MATTER
Appellant's invention "relates to ... obscuring acoustic speech."
Spec. ,r 3. Appellant's Figure 1 is illustrative and is reproduced below:
15
FIG.1
Figure 1 illustrates "one embodiment of a voice obscuration, speech masking
and canceling system." Id. ,r 20.
According to the Specification, "[p ]rocessor (7) records the present
time spoken sounds from speaker (1)" into microphone (5). Id. ,r 26. An
"obscuring acoustic signal (11) is generated by the processor (7) and is
conveyed to the loud speaker ( 6) [located on the far side of the microphone
(5).]" Id. ,r 27. "A resultant signal (12), comprised of [the speaker (l)'s]
acoustic speech (10) and obscuring signal (11 ), is ... heard by a listener ...
. Said listener is hence made unable to understand the [two] combined
acoustic sounds." Id.
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Application 13/948,937
Claim 1 is representative and reproduced below:
1. A cellphone apparatus with voice sound cancelling or
obscuring that is operated by a user wherein the user has a head,
mouth and has neck or head skin tissue wherein said neck or head
skin tissue experiences motions, wherein the user produces a
speech signal that exits from the user's mouth, and wherein there
is local noise from the environment of the user and wherein there
are persons nearby the user, comprising:
a cell phone operably connected to the head of the user,
a first microphone, said first microphone located in front
of the user's mouth and operably connected to said cell phone
wherein said first microphone has a far side and said far side is
located away from the user's mouth, wherein said first
microphone receives the speech signal from the user's mouth and
wherein said speech signal of the user includes vocal output
intensity and voice sounds,
a second microphone which samples the local noise from
the environment of the user, said second microphone operably
connected to said cell phone and the head
of the user,
a loudspeaker located on said far side of said first
microphone, said loudspeaker that is located on said far side of
said first microphone is located away from the user's mouth and
is operably connected to said cell phone and the head of the user,
a system for measuring said speech signal of the user and
broadcasting an obscuring acoustic signal diminishing said vocal
acoustic output intensity or distorting said voice sounds or both
diminishing said vocal acoustic output intensity and distorting
said voice sounds making them unintelligible to persons nearby
wherein said system is positioned proximate the neck or head
skin tissue of the user, said system including
a non-acoustic sensor located proximate or contacting the
neck or head skin tissue of the user for sensing the neck or head
skin tissue motions that are related to said vocal acoustic output
intensity and said voice sounds,
a processor connected to said first microphone, connected
to said non-acoustic sensor, and connected to said second
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microphone, said processor using said vocal acoustic output
intensity and said voice sounds from said first microphone, the
neck or head skin tissue motions from said non-acoustic sensor,
and the local noise from the environment of the user from said
second microphone for producing said obscuring acoustic signal,
and
a device connected to said loudspeaker that uses said
loudspeaker for broadcasting said obscuring acoustic signal
diminishing said vocal acoustic output intensity or distorting said
voice sounds or both diminishing said vocal acoustic output
intensity and distorting said voice sounds making them
unintelligible to persons nearby.
REJECTION
Claims 1 and 9 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Specht (US 2004/0125922 Al; July 1, 2004) and Burnett
(US 2002/0184012 Al; Dec. 5, 2002). Final Act. 2-8.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 4I.37(c).
Independent claim 1 recites, in part, a "first microphone has a far
side" and "a loudspeaker located on said far side of said first microphone."
Independent claim 9 recites similar language. Appellant argues these
limitations should be construed to mean that the loudspeaker is in contact
with the far side of the first microphone. App. Br. 8-9, 16; Reply Br. 3-5.
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To resolve the question of patentability under§ 103(a), we begin by
construing claim 1. During examination, claims are given their broadest
reasonable interpretation consistent with the Specification. See In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). "Construing
claims broadly during prosecution is not unfair to the applicant ... because
the applicant has the opportunity to amend the claims to obtain more precise
claim coverage." Id. Consistent with the broadest reasonable construction,
claim terms are presumed to have their ordinary and customary meaning as
understood by a person of ordinary skill in the art in the context of the entire
patent disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007). Reading a claim in light of the specification, to thereby interpret
limitations explicitly recited in the claim, is a quite different thing from
reading limitations of the specification into a claim, to thereby narrow the
scope of the claim by implicitly adding disclosed limitations that have no
express basis in the claim. In re Prater, 415 F.2d 1393, 1404---05 (Fed.
Cir. 1969); In re Van Geuns, 988 F.2d 1181 (Fed. Cir. 1993).
The meaning of a claim term may be determined by reviewing a
variety of sources including the claims themselves, dictionaries and treatises,
and the written description, the drawings, and the prosecution history.
Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.
Cir. 2003). Paragraph 9 of the Specification discusses that "FIG. 1
illustrates one embodiment of a system constructed in accordance with the
present invention." Spec. ,r 9; Fig. 1; see also Spec. ,r 20 ("Referring now to
the single figure of drawings[,] one embodiment of a voice obscuration,
speech masking and canceling system is illustrated."). We find the sole
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instance of the phrase "located on" in the description of this one
embodiment. Id. ,r 2 7.
Yet, the Specification states the "[ s Jpecific embodiments are shown
by way of example. It is to be understood that the invention is not limited to
the particular forms disclosed. The invention covers all modifications,
equivalents, and alternatives falling within the spirit and scope of the
invention as defined by the claims." Id. ,r 8; see id. ,r,r 5, 10. As such, one
skilled in the art would not have interpreted the recited "loudspeaker located
on said far side of said first microphone" to be limited to the example shown
in Figure 1. Moreover, the Federal Circuit explained that the courts have
"rejected the contention that if a patent describes only a single embodiment,
the claims of the patent must be construed as being limited to that
embodiment." Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
2005).
Appellant then points to a dictionary definition of the word "on."
App. Br. 8, 17; Reply Br. 4. According to Appellant, a loudspeaker located
on a microphone's far side is a loudspeaker in contact with the microphone's
far side because the Merriam-Webster Dictionary defines the word "on" as
being a function word to indicate a position in contact with and supported by
a surface. Reply Br. 4; accord MERRIAM-WEBSTER'S COLLEGIATE
DICTIONARY 811 (prep. def la) (10th ed. 1993) (defining the word "on" as
being "used as a function word to indicate position in contact with and
supported by the top surface of ."). But
contrary to Appellant's contention, the Merriam-Webster Dictionary also
defines the word "on" as being "used as a function word to indicate position
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in close proximity with
." Id. (prep. def le) (emphasis
added); see App. Br. 8, 17 ( citing the Merriam-Webster Dictionary
definition defining the word "on" as being a function word to indicate
position in close proximity with); Ans. 11 (noting the Merriam-Webster
Dictionary definition that defines the word "on" as being a function word to
indicate position in close proximity with).
Appellant's arguments do not address, let alone persuasively rebut,
the Examiner's construction of "on the far side of." Ans. 11-12. See In re
Angstadt, 537 F.2d 498, 501 (CCPA 1976) (noting "we must give effect to
all claim limitations.") (emphasis in original); In re Wilson, 424 F.2d 1382,
1385 (CCPA 1970) (noting "[a]ll words in a claim must be considered in
judging the patentability of the claim against the prior art."). According to
the Examiner, the phrase
"on the far side" does not necessarily and expressly require th[ e]
loudspeaker to be integrally formed on the opposite surface of
the first microphone .... Having a "side" is not necessarily the
same thing as having a ["surface,"] but can more generally
simply indicate a relative location in position between two or
three things.
Ans. 12. Appellant has not persuasively shown this Examiner's reasoning
regarding the interpretation of the phrase "on the far side of' to be in error.
Thus, in light of the disclosures in the Specification, the dictionary
definitions of "on," and the Examiner's interpretation of the phrase "on the
far side of' discussed above, we agree with the Examiner that the claims are
not limited to a loudspeaker in contact with a first microphone.
Turning to the rejection, the Examiner finds Specht's apparatus
comprises a cell phone (102) operably connected to a user's head and a first
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microphone ( 106) having a far side located away from the user's mouth.
Final Act. 2-3 ( citing Specht ,r,r 9, 24--26; Figs. 2A-2B, 3). The Examiner
also finds Specht' s loudspeaker ( 112) is located on the far side of a
microphone (106). Id. at 3--4. Appellant argues Specht fails to disclose the
features recited in claims 1 and 9 because Specht's loudspeaker (112) is
suspended away from the microphone (106). App. Br. 10-11, 15; Reply
Br. 3, 6-7. Appellant's argument, however, is not commensurate with the
scope of claims 1 and 9 under our construction, because claims 1 and 9 do
not recite a loudspeaker in contact with a microphone. Accordingly,
Appellant's argument does not persuade us of error in the Examiner's
rejection. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not
appearing in the claims cannot be relied upon for patentability). Appellant's
argument that Burnett is silent regarding a loudspeaker located on the far
side of a first microphone, App. Br. 11-12, is not germane to the Examiner's
findings in this regard because the Examiner does not rely on Burnett to
teach this limitation.
The Examiner acknowledges Specht does not teach a second
microphone which samples local noise from the user's environment, the
second microphone operably connected to the cell phone and user's head, as
claim 1 recites. Final Act. 6. The Examiner cites Burnett for teaching a
noise cancelling system that uses a second microphone for measuring
background noise (in addition to a first microphone to measure a user's
speech signal) in concluding that the claim would have been obvious in light
of the combined teachings of Specht and Burnett. Final Act. 7-8 ( citing
Burnett ,r,r 14, 79-80, 123-124; Figs. 9, 12). Thus, Appellant's argument
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that Specht is silent regarding a second microphone that samples local noise
from the user's environment, App. Br. 12-13, is not germane to the
Examiner's findings in this regard because the Examiner does not rely on
Specht to teach this limitation.
We see no error in the Examiner's reliance on Burnett for this limited
purpose. Appellant contends Burnett's second microphone is not operably
connected to a cell phone and a user's head. App. Br. 13; Reply Br. 8.
However, the Examiner's findings in this regard are not based solely on
Burnett, but rather on the combination of Specht and Burnett. Thus,
Appellant's argument that Burnett's second microphone that samples local
noise from a user's environment is not operably connected to a cell phone
and a user's head is unavailing where, as here, the rejection is not based
solely on the teachings of Burnett, but rather on the collective teachings of
Specht and Burnett. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
Cir. 1986); In re Keller, 642 F.2d 413,426 (CCPA 1981).
Despite Appellant's arguments to the contrary, App. Br. 14--15, the
Examiner has provided valid reasons for combining the references that are
supported by articulated reasoning with some rational underpinning to
justify the Examiner's obviousness conclusion (Final Act. 8; Ans. 18-21 ).
We find no error in the Examiner's articulated reason to combine Specht and
Burnett. See Final Act. 9; Ans. 18-21. As the Examiner explains, even
though Specht may be sufficient to mask a user's speech using only a single
microphone, Burnett teaches using additional information obtained from a
second microphone that could be added to Specht to improve the calculation
of the masking signal. Ans. 20. We agree with the Examiner that these
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proposed enhancements to Specht predictably use prior art elements
according to their established functions to yield a predictable result.
Ans. 19--21; see KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,417 (2007).
Lastly, Appellant contends, for the first time in the Reply Brief, that
Burnett "does not contain the word 'cellphone' and does not relate to a
cellphone." Reply Br. 8. Appellant argues "[t]here is no valid reason for
modifying the primary Specht reference relating to a cellphone with the
secondary Burnett reference that does not relate to a cellphone." Id.
This newly-raised argument is waived as untimely. See 37 C.F.R.
§ 41.41 (b )(2 ). The Examiner had no opportunity to respond to the argument
made only in the Reply Brief. See Ex parte Borden, 93 USPQ2d 1473, 1475
(BP AI 2010) (informative). Arguments not raised in an appeal brief and
raised for the first time in a reply brief and "not responsive to an argument
raised in the examiner's answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown." 37 C.F.R. § 41.41(b)(2).
Even if Appellant's argument were raised in a timely fashion, which it
was not, we would not find it persuasive. We note the Examiner does not
rely on Burnett for teaching a microphone operably connected to a
cellphone.
To the extent Appellant's argument on page 8 of the Reply Brief is a
contention that Specht and Burnett are considered as non-analogous art
because one reference explicitly recites the word "cellphone" and the other
reference does not, the analogous art test does not ask whether the prior art
references are analogous to each other, but whether the references are
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analogous to the claimed subject matter. See In re Kahn, 441 F.3d 977,
986-87 (Fed. Cir. 2006). To the extent Appellant's argument is a new basis
for asserting that there is no rationale for combining Specht and Burnett, this
argument is also unpersuasive. As discussed above, the Examiner provided
sufficient, and unrebutted, reasons with rational underpinnings for
combining Burnett's teaching of a second microphone to collect background
noise with Specht's system. See Ans. 18-21; KSR, 550 U.S. at 406.
We are not persuaded the Examiner erred in rejecting claim 1. See Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Accordingly, we sustain the rejection of independent claim 1. We also
sustain the rejection of independent claim 9, which was rejected on
substantially the same bases as claim 1. See Final Act. 10-11.
CONCLUSION
Under§ 103(a), the Examiner did not err in rejecting claims 1 and 9.
DECISION
We affirm the Examiner's decision to rejection claims 1 and 9.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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