Ex Parte Kappus et al

Patent Trial and Appeal Board

Apr 30, 2018

14545351 (P.T.A.B. Apr. 30, 2018)

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).
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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
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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
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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).
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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
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