Ex Parte Kappus et alDownload PDFPatent Trial and Appeal BoardApr 30, 201814545351 (P.T.A.B. Apr. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/545,351 04/27/2015 Brian Alan Kappus 30764 7590 05/02/2018 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 12275 EL CAMINO REAL, SUITE 200 SAN DIEGO, CA 92130 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. 31XJ-210985 7151 EXAMINER MOONEY, JAMES K ART UNIT PAPER NUMBER 2655 NOTIFICATION DATE DELIVERY MODE 05/02/2018 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): DOCKETING@SHEPPARDMULLIN.COM SheppardMullin_Pair@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN ALAN KAPPUS, EL WOOD GRANT NORRIS, and JAMES A. BARNES 1 Appeal2018-004202 Application 14/545,351 Technology Center 2600 Before CAROLYN D. THOMAS, ERIC B. CHEN, and JON M. JURGOV AN, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 1-8 and 14--22, all the pending claims in the present application. Claims 9-13 and 23-25 are canceled (see Claims Appendix). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants name Turtle Beach Corporation as the real party in interest (App. Br. 1 ). Appeal2018-004202 Application 14/545,351 The present invention relates generally to an ultrasonic audio headphone system (see Spec., Abstract). Claim 1 is illustrative: 1. An ultrasonic headphone system, comprising: two ultrasonic audio speakers, each comprising: a backing plate; and a flexible layer disposed adjacent the backing plate, the backing plate and the flexible layer each configured to be electrically coupled to a respective one of a pair of signal lines carrying the audio modulated ultrasonic carrier signal from an amplifier, wherein upon application of the audio modulated ultrasonic carrier signal, the flexible layer is configured to launch a pressure- wave representation of the audio modulated ultrasonic carrier signal into the air; and two headphone housings, each of the headphone housings holding one of the two ultrasonic audio speakers and configured to provide vented engagement of each of the headphone housings with an ear. Appellants appeal the following rejections: Claims 1-8 and 14--22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Norris (US 5,889,870 Bl, May 6, 2014) and Pollard (US 2011/0002478 Al, Jan. 6, 2011) in combination with various other prior art (see Final Act. 5-15). We review the appealed rejections for error based upon the issues identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential). 2 Appeal2018-004202 Application 14/545,351 ANALYSIS Rejection under§ 103 (a) Issue: Did the Examiner err in combining Norris and Pollard? Notwithstanding what the teachings of Norris and Pollard would have suggested to one with ordinary skill in the art at the time of the invention, Appellants contend that there is evidence of nonobviousness due to secondary considerations, i.e., unexpected results. Specifically, Appellants contend that a person having ordinary skill in the art (PHO SIT A) would not combine "an open or vented headphone configuration with ultrasonic emitters due to: (1) the known difficulty in producing low frequency audio with ultrasonic emitters; and (2) the understanding that bass/low frequency response is lost or diminished in conventional headphones having audio loudspeakers in an open or vented configuration" (App. Br. 12). Appellants further contend that "the Kappus Declaration provides actual test results indicative of the unexpected result" (App. Br. 13; see also Reply Br. 3). Appellants emphasize that "ultrasonic audio systems have inherent difficulty in trying to render bass/low frequency audio" (Reply Br. 3). In essence, Appellants assert that a PHO SIT A would have known about the difficulty in producing low frequency audio in both ultrasonic emitters and in conventional headphones with vented configurations, and as a result would not have combined the two concepts. Although Appellants direct our attention to Pollard to provide evidence of conventional headphones with diminished bass/low frequency response (see App. Br. 9-- 10, citing Pollard i-f 51 ), Appellants fail to direct our attention to any objective evidence regarding the alleged difficulty in producing low 3 Appeal2018-004202 Application 14/545,351 frequency audio with ultrasonic emitters. In other words, even if we assume arguendo (without deciding) that conventional headphones with vented configurations produce diminished bass/low frequency response (as proffered by Appellants), Appellants fail to produce any objective evidence to establish that ultrasonic audio systems also have inherent difficulty in rending bass/low frequency audio. In fact, Appellants' Specification merely notes that "[ t ]he advantages described herein with respect to ultrasonic emitters, such as highly directional audio transmission, for example, can be achieved in the context of headphones as well" (i-f 89). Appellants fail to direct our attention to any disclosure in their Specification describing the ultrasonic emitters' alleged difficulties with bass/low frequency response. Factual inquiries for an obviousness determination include secondary considerations based on evaluation and crediting of objective evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). Notwithstanding what the teachings of the prior art would have suggested to one with ordinary skill in the art at the time of the invention, the totality of the evidence submitted, including objective evidence of nonobviousness, may lead to a conclusion that the challenged claims would not have been obvious to one with ordinary skill in the art. In re Piasecki, 745 F.2d 1468, 1471-72 (Fed. Cir. 1984). Here, we find that Appellants' assertions regarding "ultrasonic emitters" are not supported by any objective evidence of record. Similarly, the Examiner finds that "[t]he Kappus Declaration was addressed in the 3/23/17 Office Action and deemed insufficient" (Ans. 4). Specifically, the Kappus Declaration merely makes conclusory statements about ultrasonic 4 Appeal2018-004202 Application 14/545,351 emitters that are unsupported by factual evidence (see Kappus Declaration items 10 and 11) , and are therefore entitled to little probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Given that Appellants premise their assertions of unexpected results under the assumption that both the ultrasonic emitters and the conventional headphones with open vents have difficulty in producing low frequency audio, and Appellants have not provided objective evidence regarding their ultrasonic emitters assertions, we find that Appellants have not fulfilled their burden. The burden of demonstrating unexpected results rests on the party asserting them. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). It is well settled that results must be established by factual evidence. "Mere argument or conclusory statements in the specification does not suffice." In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Similarly, mere pleading in the declaration is not proof or "showing of facts," because the declaration must include objective evidence. As such, Appellants' conclusory assertions do not provide sufficient credible evidence to support its allegations of nonobviousness based on secondary considerations. Furthermore, to accord substantial weight to any objective evidence requires the finding of a nexus between the evidence and the merits of the claimed invention. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). Appellants also fail to establish such a nexus. Finally, "'objective evidence of nonobviousness must be commensurate in scope with the claims."' In re Kulling, 897 F.2d 1147, 1149 (Fed. Cir. 1990). We agree with the Examiner that "[t]here are no claim limitations directed to improving a bass/low frequency response" (Ans. 3). 5 Appeal2018-004202 Application 14/545,351 Accordingly, for at least the reasons noted supra, we sustain the Examiner's rejection of the claims. DECISION We affirm the Examiner's§ 103(a) rejections of claims 1-8 and 14-- 22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation