Harman International Industries, Inc.

Patent Trials and Appeals Board

Oct 26, 2020

2019004128 (P.T.A.B. Oct. 26, 2020)

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.
14/747,384 06/23/2015 Paul Michael CHAVEZ HARM 0420 PUSP 8953
109676 7590 10/26/2020
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
EXAMINER
CALDERON IV, ALVARO R
ART UNIT PAPER NUMBER
2173
NOTIFICATION DATE DELIVERY MODE
10/26/2020 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@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PAUL MICHAEL CHAVEZ,
ADAM JAMES EDWARD HOLLADAY, SEAN MICHAEL HESS, and
RYAN DANIEL HAUSCHILD
____________

Appeal 2019-004128
Application 14/747,384
Technology Center 2100
____________

Before ROBERT E. NAPPI, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–20, which are all the claims pending and rejected in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Harman International Industries, Inc. as the real party in
interest. Appeal Br. 1.

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STATEMENT OF THE CASE
Introduction
The present invention relates to
[a] system for providing an audio processing interface at a
mobile device configured to detect an audio processor, present,
via a user interface, a display screen to receive user input to
initiate audio testing, iteratively present a series of testing
screens, each including at least one instruction and test status,
and present another instruction and test status in response to
receiving and indicative of a successful sample at a previous
microphone location.
Spec., Abstr. Claims 1, 7, and 12 are exemplary:
1. A non-transitory computer-readable medium tangibly
embodying computer-executable instructions of a software
program, the software program being executable by a processor
of a computing device to provide operations, comprising:
receiving an indication of the presence of an audio
processor;
presenting, via a mobile device, a display screen to
receive user input to initiate audio testing; and
presenting a series of testing screens, each including at
least one instruction and test status associated with one of a
plurality of microphone locations, and wherein at least one of
the testing screens provides a selectable option for acquiring at
least one audio sample at one of the plurality of microphone
locations to be analyzed and processed to increase audio sound
quality of a loudspeaker.
7. A system for providing an audio processing interface
at a mobile device, a mobile device including an interface
configured to:
detect an audio processor;
present, via a user interface, a display screen to receive
user input to initiate audio testing;
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iteratively present a series of testing screens, each
including at least one instruction and test status associated with
one of a plurality of microphone locations; and
present another instruction and test status associated with
another one of the plurality of microphone locations in response
to receiving an indication of a successful sample at a previous
microphone location.
12. A method, comprising:
recognizing an audio processor;
presenting a first testing screen indicating a first
microphone location;
presenting a first testing status at the first microphone
location;
receiving a testing complete status for the first
microphone location; and
presenting, in response to the testing complete status, a
second testing screen indicating a second microphone location
distinct from the first microphone location.

References and Rejections2
Claims
Rejected
35 U.S.C. § References
1–6, 10 112(b) N/A
1–20 103 Riggi (US 2016/0021473 A1, published Jan. 21,
2016), Fado (US 5,943,649, issued Aug. 24, 1999)

2 Throughout this opinion, we refer to the (1) Non-Final Office Action dated
Aug. 15, 2018 (“Non-Final Act.”); (2) Appeal Brief dated Oct. 18, 2018
(“Appeal Br.”); (3) Examiner’s Answer dated Mar. 8, 2019 (“Ans.”); and
(4) Reply Brief dated May 2, 2019 (“Reply Br.”).
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PRINCIPLES OF LAW
“[W]hen the prior art teaches away from combining certain known
elements, discovery of a successful means of combining them is more likely
to be nonobvious.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990
(Fed. Cir. 2006).
“[T]he ‘mere disclosure of alternative designs does not teach away’”
and “just because better alternatives exist in the prior art does not mean that
an inferior combination is inapt for obviousness purposes.” In re Mouttet,
686 F.3d 1322, 1334 (Fed. Cir. 2012).
Although a reference that teaches away is a significant factor to
be considered in determining unobviousness, the nature of the
teaching is highly relevant, and must be weighed in substance.
A known or obvious composition does not become patentable
simply because it has been described as somewhat inferior to
some other product for the same use.
In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).

ANALYSIS
Obviousness
On this record, the Examiner did not err in rejecting claim 1.
We have reviewed and considered Appellant’s arguments, but such
arguments are unpersuasive. To the extent consistent with our analysis
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below, we adopt the Examiner’s findings and conclusions in (i) the action
from which this appeal is taken and (ii) the Answer.3
Claim 1
Appellant contends neither Riggi nor Fado teaches
presenting a series of testing screens, each including at least one
instruction and test status associated with one of a plurality of
microphone locations, and wherein at least one of the testing
screens provides a selectable option for acquiring at least one
audio sample at one of the plurality of microphone locations,
as recited in claim 1. See App. Br. 3–5; Reply Br. 2–3. In particular,
Appellant asserts
Riggi does not present screens that include a plurality of
locations on an interface of a mobile device. Riggi is silent as to
how the user is instructed to the near and far measurements.
While a blueprint of the near and far locations are illustrated in
Figures 2A and 2B, these blueprints are not presented via an
interface. Moreover, to the extent that the screens in Figures 6A-
6C could teach the claimed “series of testing screens,” which
they cannot, these alleged testing screens do not include “at least
one instruction and test status associated with one of a plurality
of microphone locations,” as claimed. The Examiner alleges that
these screens illustrate “[t]ransitions between the user
interfaces.” Office Action, page 6. However, these screens have
nothing to do with “at least one instruction and test status
associated with one of a plurality of microphone location.”
To reiterate, Riggi discloses taking measurements at two
locations, near and far, but fails to present or show these
locations via a user interface, let alone to do so with “instruction
and tests status” associated with each. Thus, Riggi cannot teach
or suggest at least to “presenting a series of testing screens, each

3 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See
37 C.F.R. § 41.41(b)(2).

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including at least one instruction and test status associated with
one of a plurality of microphone locations,” as recited in claim
1.

Appeal Br. 4–5; see also Reply Br. 2. Appellant also argues Fado
teaches away from the disputed limitation. See App. Br. 5; Reply Br.
2–3.
Appellant has not persuaded us of error. Because the Examiner relies
on the combination of Riggi and Fado to teach the disputed claim limitation,
Appellant cannot establish nonobviousness by attacking the references
individually. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner finds—and Appellant does not dispute—Fado teaches
“presenting a series of testing screens, each including at least one instruction
and test status . . ., and wherein at least one of the testing screens provides a
selectable option for acquiring at least one audio sample.” See Non-Final
Act. 7. Therefore, Riggi does not need to teach those claim elements.4
Further, Appellant’s argument is not commensurate with the scope of
claim 1, which does not require “screens that include a plurality of locations
on an interface of a mobile device.” In addition, Appellant’s teaching-away
argument is unpersuasive because Appellant fails to provide adequate
analysis under the case law. Appellant fails to assert—let alone show—one
skilled in the art “would be discouraged from following the path set out in
the reference, or would be led in a direction divergent from the path that was
taken by the applicant.” Kahn, 441 F.3d at 990.

4 The Examiner also finds—and Appellant does not dispute—Riggi teaches
the remaining portion of the disputed limitation “associated with one of a
plurality of microphone locations, . . . at one of the plurality of microphone
locations.” See Non-Final Act. 5.
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Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1.

Claim 7
Appellant contends Riggi does not teach “present another instruction
and test status associated with another one of the plurality of microphone
locations in response to receiving an indication of a successful sample at a
previous microphone location,” as recited in claim 7. See Appeal Br. 5–6;
Reply Br. 3. In particular, Appellant asserts Riggi does not teach “an
indication of a successful sample at a previous microphone location.” See
Appeal Br. 6; Reply Br. 3.
Appellant has not persuaded us of error. Because the Examiner relies
on the combination of Riggi and Fado to teach the disputed claim limitation,
Appellant cannot establish nonobviousness by attacking Riggi individually.
See Merck, 800 F.2d at 1097. The Examiner finds—and Appellant does not
dispute—Fado teaches “present another instruction and test status . . . in
response to receiving an indication of a successful sample.” See Non-Final
Act. 11. The Examiner also finds—and Appellant does not dispute—Riggi
teaches the remaining portion of the disputed limitation “associated with
another one of the plurality of microphone locations . . . at a previous
microphone location.” See Non-Final Act. 10. Because Appellant does not
dispute the Examiner’s rationale for combining the teachings of Riggi and
Fado, the Examiner has not erred in concluding Riggi and Fado collectively
teach “present another instruction and test status associated with another one
of the plurality of microphone locations in response to receiving an
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indication of a successful sample at a previous microphone location,” as
recited in claim 7.
Because Appellant has not persuaded us the Examiner erred, and for
similar reasons discussed above with respect to claim 1, we sustain the
Examiner’s rejection of independent claim 7.

Claim 12

Appellant argues claim 12 is patentable for the same reasons
discussed above with respect to claims 1 and 7. See Appeal Br. 7.
Appellant’s argument is not commensurate with the scope of claim
12, because Appellant has not shown claim 12 includes the disputed
limitations of claims 1 and 7. In any event, as discussed above, Appellant’s
arguments are unpersuasive. Therefore, we sustain the Examiner’s rejection
of independent claim 12.

Dependent Claims

For similar reasons discussed above with respect to the independent
claims, we sustain the Examiner’s rejection of dependent claims 2, 5, 6, 10,
11, 13, 16, 17, 19, and 20, as Appellant does not advance separate
substantive arguments about those claims. See 37 C.F.R. § 41.37(c)(1)(iv).
Regarding dependent claims 3, 4, 8, 9, 14, 15, and 18, in response to
Appellant’s arguments, the Examiner further explains why Riggi and Fado
collectively teach the subject matter of the disputed dependent claims. See
Ans. 5–8. Appellant fails to persuasively respond to such findings and,
therefore, fails to show Examiner error. See In re Baxter Travenol Labs.,
952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court [or
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this Board] to examine the claims in greater detail than argued by an
appellant, looking for [patentable] distinctions over the prior art.”). Further,
Appellant has not persuaded us of Examiner error for the following
additional reasons:
For dependent claims 3 and 14, Appellant argues the Examiner erred
for the reasons discussed above with respect to claim 1. See Appeal Br. 7.
As discussed above, Appellant’s arguments with respect to claim 1 are
unpersuasive.
For dependent claims 4 and 9, Appellant argues “[n]either reference
. . . has anything to do with ‘an indication of a successful audio sample’ at a
specific location. Riggi fails to disclose subsequent locations, as does Fado,
let alone disclose a second location following a successful audio sample at
the first location, within the context of the claims.” Appeal Br. 8.
Appellant’s argument is unpersuasive, as Appellant does not provide
sufficient objective evidence to support the assertion. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997) (“attorney argument [is] not the kind
of factual evidence that is required to rebut a prima facie case of
obviousness”); Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977)
(“Argument of counsel cannot take the place of evidence lacking in the
record.”).
For dependent claim 8, Appellant argues the Examiner fails to identify
which element of the prior art teaches the claimed “testing status icon.”
Appeal Br. 8. Appellant’s argument contradicts the record, because the
Examiner explicitly states “the plurality of testing status icons in figs. 16-
20” (Non-Final Act. 12), and Fado’s Figure 16 shows an icon with the
caption “Click ‘Test’ to begin recording room noise” (Fado, Fig. 16).
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For dependent claim 15, Appellant argues the Examiner fails to
identify which element of the prior art teaches the claimed “a dynamically
updated icon.” Appeal Br. 8. Appellant’s argument contradicts the record,
because the Examiner explicitly states “the plurality of dynamically updated
testing status icons indicating a current level of completion of testing in figs.
16-20” (Non-Final Act. 17).
For dependent claim 18, Appellant argues “[f]or at least the reasons
set forth above, Riggi and Fado fail to disclose a testing complete icon at
both the first microphone location and the second microphone location.”
Appeal Br. 8. It is unclear what specific “reasons set forth above” Appellant
is referencing. In any event, as discussed above, Appellant’s arguments
about all other claims are unpersuasive.
Therefore, and for similar reasons discussed above with respect to
claims 1 and 7, we sustain the Examiner’s rejection of dependent claims 3,
4, 8, 9, 14, 15, and 18.

Indefiniteness
The Examiner determines claim 1 is indefinite with respect to the
limitation “increase audio sound quality of a loudspeaker,” because that term
“could depend on a matter of personal taste and/or other relative/subjective
considerations.” Non-Final Act. 3. The Examiner rejects depending claims
2–6 and 10 for the same reason, as each of those claims also recites that
limitation. Id.
Appellant merely argues the term “does not render the claim
indefinite,” but does not explain why. Appeal Br. 9.
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Because Appellant does not provide any reasoning to support the
conclusion, Appellant’s conclusory argument is insufficient to show
Examiner error. Therefore, we sustain the Examiner’s indefiniteness
rejection of claims 1–6 and 10. We note our affirmance is based on
Appellant’s failure to provide any analysis to show Examiner error, as we
are a reviewing body and do not assume the Examiner’s role in examining
the issue de novo.

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–20 under 35
U.S.C. § 103.
We affirm the Examiner’s decision rejecting claims 1–6 and 10 under
35 U.S.C. § 112(b).
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 103 Riggi, Fado 1–20
1–6, 10 112(b) Indefiniteness 1–6, 10
Overall
Outcome
1–20

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). See 37
C.F.R. § 41.50(f).

AFFIRMED