Apple Inc.

Patent Trials and Appeals Board

Sep 10, 2020

2020003898 (P.T.A.B. Sep. 10, 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.
15/496,681 04/25/2017 Sorin V. Dusan P20822USX1 8724
62579 7590 09/10/2020
APPLE INC./BROWNSTEIN
c/o Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street
Suite 2200
Denver, CO 80202
EXAMINER
LE, TOAN M
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
09/10/2020 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):
patentdocket@bhfs.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SORIN V. DUSAN
Appeal 2020-003898
Application 15/496,681
Technology Center 2800
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 9, 10, and 17–27. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Apple, Inc.
Appeal Br. 3.
Appeal 2020-003898
Application 15/496,681

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CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to wearable electronic
devices and detecting an installation position on a user based upon a signal
from one or more sensors. Spec. ¶ 2. Claims 1, 17, and 21 are the three
independent claims on appeal. Claim 1 is illustrative, and we reproduce it
below while adding emphasis to certain key recitations:
1. A computer-implemented method for determining an
installation position of a wearable audio device, the method
comprising:
acquiring, using an accelerometer disposed in a wearable
audio device, acceleration data over a period of time;
transmitting the acceleration data to a processing unit;
computing, using the processing unit, an aggregate metric
based on the acceleration data, the aggregate metric indicating a
net-positive acceleration condition or a net-negative
acceleration condition over the period of time; and
determining, based on the net-positive acceleration
condition or the net-negative acceleration condition,
whether an installation position of the wearable audio
device is on a right ear or a left ear of a user.

Appeal Br. i (Claims App.). Claim 17 recites a system comprising a portable
electronic device configured to make a determination similar to the
“determining” emphasized above. Id. at iii. Claim 21 recites an apparatus
comprising, among other things, a processing unit configured to make a
determination similar to the “determining” emphasized above. Id. at iv.

2 In this Decision, we refer to the Final Office Action dated July 29, 2019
(“Final Act.”), the Appeal Brief filed February 13, 2020 (“Appeal Br.”), the
Examiner’s Answer dated March 25, 2020 (“Ans.”), and the Reply Brief
filed April 29, 2020 (“Reply Br.”).
Appeal 2020-003898
Application 15/496,681

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REJECTION AND REFERENCES
On appeal, the Examiner maintains (Ans. 3) the rejection of claims 1–
7, 9, 10, and 17–27 under 35 U.S.C. § 102(a)(1) as anticipated by Kohei
Onizuka & Charles G. Sodini, Head Ballistocardiogram based on Wireless
Multi-location Sensors, IEEE 1275–1278, 2015 (“Onizuka”). Final Act. 2.

OPINION
A reference anticipates a claim if it “disclose[s] each and every
element of the claimed invention, whether it does so explicitly or
inherently.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (citation
omitted). The elements “must be arranged or combined in the same way as
in the claim.” Id. (internal quotes and citation omitted).
Here, the Examiner finds that Onizuka discloses each element of
independent claims 1, 17, and 21. With respect to claim 1, Appellant argues,
among other things, that Onizuka does not disclose “determining, based on
the net-positive acceleration condition or the net-negative acceleration
condition, whether an installation position of the wearable audio device is on
a right ear or a left ear of a user.” Appeal Br. 7–10. For the reasons
explained below, Appellant’s argument persuades us of error.
Onizuka describes a ballistocardiogram (BCG) clinical method to
measure recoil against the heart pumping blood. Onizuka 1275. The Onizuka
method attaches sensors to a person’s left and right ear and analyzes
acceleration at each location. Id. The accelerometer data is measured and
used to assess the person’s vital signs. Id.; see also Appeal Br. 8–9.
To reach the key “determining” recitation that Appellant argue, the
Examiner finds, for example, that Onizuka discloses that its signals coming
Appeal 2020-003898
Application 15/496,681

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from left and right ears are distinct. Final Act. 3. In particular, the Examiner
emphasizes that Onizuka states, “[i]nterestingly, amplitudes on the right ear
are smaller than the left ears or head top. They are also out of phase.” Id.
(quoting Onizuka 1276); see also Ans. 14. Similarly, the Examiner
emphasizes Onizuka’s figures as disclosing different signals for the left and
right ears. Ans. 14 (referring to Onizuka Figs. 2–5(b)).
Onizuka’s teachings indicate, at most, that right and left ears could be
differentiated based upon Onizuka’s signals. Onizuka does not disclose
using its signals to actually make such a determination. Nor has the
Examiner demonstrated that a person of skill in the art would have had a
reason to make a right versus left ear determination in the context of
Onizuka. We, thus, do not sustain the Examiner’s rejection of claim 1 or the
claims depending from claim 1.
Claims 17 and 21 each require apparatus configured to reach a
determination. Appeal Br. iii–iv (Claims App.). Appellant’s argument and
the Examiner’s position regarding whether Onizuka teaches apparatus for
making the determinations these claims recite is substantially the same as
with regard to claim 1. Appeal Br. 8, 10–11; Ans.14–16. The Examiner has
not established that Onizuka discloses apparatus configured to make a
determination of the installation position of two audio devices (claim 17) or
a right versus left side determination (claim 21). We, thus, also do not
sustain the Examiner’s rejection of claims 17 and 21 and of claims
depending from claims 17 and 21.
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Application 15/496,681

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9, 10,
17–27
102 Onizuka 1–7, 9, 10,
17–27

REVERSED