Ex Parte Burgett et al

Patent Trial and Appeal Board

Mar 23, 2018

13399058 (P.T.A.B. Mar. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/399,058 02/17/2012 Seth Burgett
109676 7590 03/27/2018
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
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.
HARM0429PUSA 1030
EXAMINER
CARTER, RICHARD BRUCE
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
03/27/2018 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@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SETH BURGETT, RICHARD J. DANIELS,
DAVID FISHBAINE, BHARAT RAJARAM,
MICHAEL D. WETLE, and TONY A AN
Appeal2017-007936
Application 13/399,058
Technology Center 2400
Before JOHN A. EV ANS, SCOTT B. HOW ARD, and
JOYCE CRAIG, Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of Claims 1, 2, and 5-22. App. Br. 1. Claims 3
and 4 are canceled. Claims Appx. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We REVERSE. 2
1 Appellants identify Harman International Industries, Incorporated, as the
real party in interest. App. Br. 3.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed Dec. 29, 2016, "App. Br."), the Reply Brief
Appeal2017-007936
Application 13/399,058
STATEMENT OF THE CASE
The Invention
The claims relate to an ear measurement system. See Abstract.
Claims 1, 8, and 14 are independent. Claim 1 is illustrative and is
reproduced below with some formatting added:
1. An ear measurement method, comprising:
obtaining a two-dimensional image including both at
least a portion of an ear and an associated calibration device,
said associated calibration device being a reference object;
comparing the associated calibration device to a
predesigned template;
determining a sizing parameter based on a difference in
size between the image of the calibration device and the
predesigned template; and
determining an ear size by applying the sizing parameter
to the image of the ear.
Fu et al.
Chomenky
Jin et al.
Kalker et al.
Hart et al.
References and Re} ection
US 2003/0074174 Al
US 2005/0238194 Al
US 2007/0183603 Al
US 2008/0013794 Al
US 2011/0290005 Al
Apr. 17, 2003
Oct. 27, 2005
Aug.9,2007
Jan. 17,2008
Dec. 1, 2011
(Priority July 24, 2009)
Claims 1, 8, and 14 stand rejected under 35 U.S.C. § 112 (1st i-f), as
failing to comply with the written description requirement. Final Act. 6-7.
(filed May 1, 2017, "Reply Br."), the Examiner's Answer (mailed March 2,
2017, "Ans."), the Final Action (mailed July 22, 2016, "Final Act."), and the
Specification (filed Feb. 17, 2012, "Spec.") for their respective details.
2
Appeal2017-007936
Application 13/399,058
Claims 1, 5-9, 11, 14, and 17-22 stand rejected under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Hart and Fu. Final Act. 7-8.
Claims 2, 10, 15, and 16 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Hart, Fu, and Kalker. Final Act. 8.
Claim 12 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Hart, Fu, and Jin. Final Act. 8.
Claim 13 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Hart, Fu, and Chomenky. Final Act. 8-9.
ANALYSIS
We have reviewed the rejection of Claims 1, 2, and 5-22 in light of
Appellants' arguments that the Examiner erred.
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 5-11.
CLAIMS 1, 8, AND 14: WRITTEN DESCRIPTION.
The Examiner finds the Specification lacks disclosure of subject
matter sufficient to interrelate essential elements of the invention. Final Act.
7 (citing Spec. i-fi-127, 29, and 30)3. Claim 1 recites, inter alia, "determining
a sizing parameter based on difference is size between the image of the
calibration device and the predesigned template," but the Examiner finds
inadequate written description to support the claimed functionality. Id.
3 The cited paragraph numbers apparently refer to US 2012/0242815, the
pre-grant publication of the instant application.
3
Appeal2017-007936
Application 13/399,058
Appellants disclose "[a] predesigned template sizing tool is scaled to
match the size of the reference earbud or other calibration device included in
the image with the user's ear." App. Br. 6 (citing Spec. i-f 29). Appellants
further disclose "overlaying the template tool on the ear image allows for
visual comparison of the edge of the bowl on an individual's ear to earbud
size outlines." Id. (citing i-f 29).
The Examiner finds the claimed "sizing parameter" lacks "exactitude
and precision." Ans. 20.
Appellants disclose:
In some disclosed embodiments, an image of the ear is taken
using a digital camera device or a digitized photographic image
or a video of an ear. In this manner, a dimension or multiple
dimensions of the ear can be created that allows an ear
prosthetic device such as an earbud adapter or earbud could be
sized for the sample ear. During the image acquisition process,
the size of the ear is calibrated to a known object such as a
ruler, a gauge block, an earbud or any fixed device to calibrate
the image such as is illustrated in Figure 1, where a calibration
device 100 is situated in the ear, and Figure 2 where a known
device such as an Apple earbud 102 is used for calibration.
Spec., p. 5, 11. 9--16. 4 Figure 1 is reproduced below.
4 Corresponding to page 79 of the Record.
4
Appeal2017-007936
Application 13/399,058
Figure 1 shows an image of an ear with a sizing device.
We find, given the Specification disclosure, a person of skill in the art would
understand how to determine the claimed "sizing parameter" with sufficient
"exactitude and precision" from an image such as disclosed in Figure 1. We
find the Specification provides sufficient written description support for the
claims.
CLAIMS 1, 5-9, 11, 14, AND 17-22: OBVIOUSNESS OVER HART AND Fu.
The Examiner finds Fu teaches a computer program that generates a
digital model of a hearing-aid shell. Ans. 20. The Examiner finds the
claimed "sizing parameter" is the size specifications associated with the
hearing-aid components that may be repeated for various hearing-aid models
until a best fit is detected. Id. at 21 (citing Fu i-f 62). The Examiner further
finds "claimed limitations provide no clear specific details that would lead
one skill in the art to believe that determining a sizing parameter based on
difference is size between the image of the calibration
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Appeal2017-007936
Application 13/399,058
device and the predesigned template contains an inventive feature." Id.
Appellants contend Fu fails to teach or suggest " determining a sizing
parameter based on a difference in size between the image of the calibration
device and the predesigned template," as required by the Claims. Reply Br.
2. We agree.
Paragraph 62 of Fu, relied on by the Examiner, teaches generating a
digital model of a hearing-aid shell from point cloud data, and calculating
the interior volume of the digital model to determine whether components
can fit properly within the interior. Fu i-f 62. We find no disclosure in Fu
that relates to an image of an ear taken along with a calibration device. On
this record, the Examiner's reliance on the teachings of Fu and a general
statement that the disputed limitation is not inventive is insufficient to show
the prior art teaches or suggests the disputed limitation.
CLAIMS 2, 10, 12, 13, 15, AND 16: OBVIOUSNESS OVER HART, Fu,
AND VARIOUSLY KALKER, JIN, AND CHORNENKY.
The Examiner Applies Hart and Fu as discussed above. The
Examiner does not apply any of Kalker, Jin, or Chomenky to the disputed
limitations of the independent claims.
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Appeal2017-007936
Application 13/399,058
DECISION5
The rejection of claims 1, 8, and 14 under 35 U.S.C. § 112 is
REVERSED.
The rejection of claims 1, 2, and 5-22 under 35 U.S.C. § 103 is
REVERSED.
REVERSED
5 In the event of further prosecution, the Examiner may wish to consider the
applicability of 35 U.S.C. § 101.
7