Ex Parte Davis

Patent Trial and Appeal Board

Feb 8, 2018

14158244 (P.T.A.B. Feb. 8, 2018)

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.
14/158,244 01/17/2014 Louis Fisher Davis JR. 56859.33 1055
27128 7590 02/12/2018
HT TSrTT RT .APKWFI T T T P
EXAMINER
190 Carondelet Plaza SUTHERS, DOUGLAS JOHN
Suite 600
ST. LOUIS, MO 63105 ART UNIT PAPER NUMBER
2654
NOTIFICATION DATE DELIVERY MODE
02/12/2018 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):
pto-sl@huschblackwell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOUIS FISHER DAVIS Jr.
Appeal 2017-006948
Application 14/158,244
Technology Center 2600
Before ROBERT E. NAPPI, DENISE M. POTHIER, and
JOYCE CRAIG, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
rejection of claims 1 through 3, 21, 22, 24, and 25. Claims 9 through 20
have been allowed, and claims 4 through 8, 23, and 26 are objected to but
would otherwise be allowable if amended to include all the limitations of
their base claim. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2017-006948
Application 14/158,244
INVENTION
Appellant’s disclosed and claimed invention is directed to an
apparatus for recording natural sounds with a matched microphone array.
Spec., Abstract. Claim 1 is illustrative of the invention and reproduced
below.
1. An ambient therapy recording and playback
system a rectangular array of microphones comprising:
four independent multi-directional matched microphones
and each of said matched microphones are independent of any
other microphone and positioned symmetrically about a center
point of the rectangular array and each microphone positioned
at one of the four comers of the array thereby having an
established sound pickup time delay between matched
microphones; and
a recording system having four independent recording
channels where each channel receives an independent
microphone signal from one of the independent matched
microphones independent of any other microphone signal for
receiving sounds independently captured by each matched
microphone, and further having an electronic storage having
stored an electronic recording of each channel's captured
sounds thereby having an established recording as an audio
sound bed.
REJECTION AT ISSUE1
The Examiner has rejected claims 1 through 3, 21, 22, 24, and 25
under 35 U.S.C. § 103(a) as being unpatentable over Ide (US 5,260,920, iss.
Nov. 9, 1993) and Ishiwata (EP 0 848 572 Al, pub. June 17, 1998). Answer
2—6. The Examiner finds that Ide teaches recording sounds from an array of
1 Throughout this Decision we refer to the Appeal Brief filed November 17,
2016 (“App. Br.”), Reply Br. filed March 24, 2017, Examiner’s Answer
mailed February 17, 2017 (“Ans.”), and the Final Action mailed May 13,
2016 (“Final Act.”).
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Application 14/158,244
microphones, Ishiwata teaches it is known to have four microphones in a
quadraphonic sound system, and that when combined it would have been
obvious to record four tracks of sound. Answer 2—3.
ISSUES
Appellant argues on pages 5 through 11 of the Appeal Brief and pages
3 through 8 of the Reply Brief that the Examiner’s obviousness rejection of
the claims is in error.2 These arguments present us with the following
issues:
a) Did the Examiner err in finding the combination of Ide and
Ishiwata teaches an array of independent matched
microphones as recited in representative claim 1 ?
b) Did the Examiner err in combining the teachings of Ide and
Ishiwata?
c) Did the Examiner err in finding the combination of Ide and
Ishiwata teaches a recording system with four independent
recording channels as recited in representative claim 1 ?
ANALYSIS
We have reviewed Appellant’s arguments in the Appeal Brief, the
Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have not persuaded us of error in the
Examiner’s rejections of claims 1 through 3, 21, 22, 24, and 25.
2 These arguments group claims 1 through 3,21, 22, 24, and 25 together.
We select claim 1 as representative and decide the appeal based upon claim
1. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 14/158,244
First issue
Appellant’s arguments directed to the first issue assert that Ide does
not teach matched microphones. App. Br. 6. Further, Appellant argues that
the Examiner’s interpretation of matched microphones being of the same
model is overly broad as the term “matched microphones” has a meaning in
the art. Reply Br. 3-4.
The Examiner responds to Appellant’s arguments located on pages 7
and 8 of the Brief. The Examiner interprets the term “matched” as being
broad and encompassing “having ANY matching feature or characteristic,
[such that] one could argue that since all of the cited microphones are non-
directional they all are of matching type, therefore actually are matched.”
Answer 7—8. Thus, the Examiner finds that using all non-directional
microphones meets the claimed “matched microphones.” Further, the
Examiner provides an alternate rationale to show matching microphones,
finding that human nature is such that the person implementing Ide’s device
would use all of the same-model microphone. Id. at 7. Also, the Examiner
finds that there are only a limited number of possibilities as far as selecting
the microphones and as such using the same-model microphone is obvious.
Id.
We concur with the Examiner’s claim interpretation and findings
concerning the use of the same-model microphone. Appellant merely asserts
that the term “matched microphone” is a term of art and has not provided a
definition or the art’s understanding of this term. Reply Br. 3, 4. Further,
Appellant argues:
matched microphones are extremely important to the
claimed system:
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Application 14/158,244
In such a system, matched microphones are very important.
They help to ensure that sounds are actually recorded in the
same way. If unmatched, microphones could each record the
same sound differently, which would result in different sounds
upon playback. As the claimed system uses independent
microphones, channels, and speakers, there is no chance for
differently recorded sounds to be combined or smoothed out.
The purpose of the claimed invention is to accurately record
and reproduce the sounds in a space, and unmatched
microphones would hinder the results. As would be understood,
hearing two different versions of (what should have been the
same) sound, coming from different directions at the same time
would reduce the efficacy of this system.
Appeal Brief, p. 7 (emphasis added). Such precision could not
be achieved simply by using "the same model" of microphone.
Even within the same brand and model, significant differences
can arise. It is for this reason that the audio industry created the
idea of "matched" equipment. Such equipment is not used in
Ide.
Reply Br. 4.
These arguments are merely attorney arguments and do not cite any
evidence to support the assertion of a difference between matched
equipment and equipment of the same model. It is well settled that mere
attorney arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997). It appears that Appellant is arguing that
matched components have a higher degree of similarity (i.e., closer
tolerances) than two of the same model devices. Such a difference is not
addressed by Appellant’s Specification, as acknowledged by Appellant on
page 8 of the Reply Brief.3 Nor are we aware of any extrinsic evidence to
3 Throughout Appellant’s Specification, filed January 17, 2014, the term
“matched microphones” is used, but we found no definition. Paragraphs 41
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support this assertion. Thus, we do not find that the Examiner’s
interpretation of the term “matched microphones” is unreasonable, or
inconsistent with Appellant’s Specification. Accordingly, Appellant’s
arguments have not persuaded us of error in the Examiner’s interpretation of
the term “matched microphones,” and we concur with the Examiner that the
term broadly encompasses the same type of microphones or microphones
having the same characteristics.
We also concur with the Examiner’s alternative findings that a user
implementing the device would have known to use the same model
microphone and that using the same model microphone for the non-
directional microphones is one of the limited number of possibilities
implementing the combined teachings. We additionally note that Ide does
not discuss using the individual directional microphones having different
properties or being of different models and, as such, further suggests all the
directional microphones are the same. Thus, we are not persuaded the
Examiner erred in finding the combination of Ide and Ishiwata teaches an
array of independent matched microphones.
Second issue
Appellant’s arguments directed to the second issue assert that the
Examiner erred in combining the teachings of Ide and Ishiwata as Ishiwata
teaches away from using independent channels. App. Br. 9. Specifically,
Appellant argues that Ishiwata’s Figure 12 (which the Examiner relies upon)
is prior art, is discussed negatively, and thus describes the structure is flawed
and 42 of Appellant’s Specification discuss specific models and properties
of microphones used. These paragraphs do not discuss what it means to be a
matched microphone.
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Application 14/158,244
and undesirable. Id. at 9-10 (citing Ishiwata, Fig. 12, col. 1,11. 28 through
col. 211. 11).
The Examiner responds to Appellant’s arguments stating:
Although the remainder of the Ishiwata reference shows
alternate playback systems they are not relied upon in the
rejection. Although they may show improvements or other
ways of making a playback system in other portions, those
systems are more complex and/or more expensive. Alternate
playback systems focused upon by Ishiwata do not take away
from the fact that the embodiment of figure 12 is well known
and can be done (i.e. they do not teach that it cannot be done in
such a manner).
Answer 8.
We concur with the Examiner. Ishiwata teaches that quadraphonic
sound systems were known and that there is one microphone, transmission,
and speaker on each channel (i.e., the microphones are on independent
channels). See Ishiwata, Fig. 12. A reference does not teach away if it
merely expresses a general preference for an alternative invention from
amongst options available to the ordinarily skilled artisan, and the reference
does not discredit or discourage investigation into the invention claimed. In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Further, we do not find
that the passages of Ishiwata’s column 1, cited by Appellant, discourages the
use of quadraphonic sound system. These passages merely identify that
quadraphonic recordings, when reproduced using stereo (2 channel) systems,
have limitations. See Ishiwata, col. 1,11. 55 through 58. Thus, we are not
persuaded the Examiner erred in combining the teachings of Ide and
Ishiwata.
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Third issue
Appellant’s arguments directed to the third issue assert that the
Examiner erred in finding the combination of Ide and Ishiwata teaches a
recording system with four independent recording channels. Appellant
argues that neither Ide nor Ishiwata teaches an independent four channel
recording system. App. Br. 10. Appellant argues that Ide teaches a
summing or adding circuit and thus does not teach independent channels.
Id. Additionally, Appellant’s argue Ishiwata does not teach a recording
system. Id.
The Examiner responds stating
The entire reason the Ishiwata reference is introduced is to
show that systems with four independent microphones, flowing
through four independent processing streams, and eventually
output via four independent speakers is notoriously old and
well-known. The mixing of directional microphones of Ide via
the adder (mics 2 added via item 62) is an unneeded luxury that
adds complexity, expense, and creates an eyesore. Ishiwata
discloses a system that may lack some sophistication but is
simple, inexpensive, and is more esthetically pleasing. One of
ordinary skill in the art would clearly see the benefit of the
independent microphones of Ishiwata (meaning they are not
mixed or combined in any way) to simplify the invention of Ide
thereby leading to cost reduction and a smaller footprint
esthetically.
App. Br. 9.
We concur with the Examiner. The mixers addressed by the
Appellant mix one directional microphone with one omni-directional
microphone and record the signal on one channel. See Ide, Fig. 3, col. 5,11.
2—9, 53—59. The Examiner’s combination of the references simplify Ide by
just using four omni-directional microphones, and not using the unneeded
luxury of the directional microphones. Thus, the mixers would not be used
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as there are no directional microphones. Further, we note that claim 1
recites having four independent recording channels, where each channel
receives an independent microphone signal from one of the microphones.
The Examiner has equated the omni-directional microphones with the
claimed microphones. As discussed above the onmi-directional
microphones are not mixed together, rather each has its own recording
channel, and thus an independent channel. Accordingly, we are not
persuaded by Appellant’s arguments which assert that the Examiner erred in
finding the combination of Ide and Ishiwata teaches a recording system with
four independent recording channels. Thus, we sustain the Examiner’s
rejection of representative claim 1 and claims 2, 3, 21, 22, 24, and 25.
DECISION
We sustain the Examiner’s rejections of claims 1 through 3, 21, 22,
24, and 25 under 35 U.S.C. § 103(a).
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). See 37 C.F.R
§ 41.50(f).
AFFIRMED
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