14306313 (P.T.A.B. Mar. 29, 2017)

Ex Parte Harvey

Patent Trial and Appeal BoardMar 29, 2017

14306313 (P.T.A.B. Mar. 29, 2017)

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. 14/306,313 06/17/2014 Jerry Harvey JH09US1 7087 63893 7590 DOUGLAS J. VISNIUS 18024 Falcon Green Court ORLANDO, EL 32820-2712 EXAMINER MCCORD, PAUL C ART UNIT PAPER NUMBER 2656 NOTIFICATION DATE DELIVERY MODE 03/31/2017 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): apexmasterworks @ gmail. com sfnlhafnap @ yahoo, com dvisnius @ bellsouth. net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JERRY HARVEY Appeal 2016-006715 Application 14/306,3131 Technology Center 2600 Before STEPHEN C. SIU, LARRY J. HUME, and STEVEN M. AMUNDSON, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1, 2, and 4â€”22. Appellant has canceled claim 3. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant indicates (App. Br. 1) the real-party-in interest is the sole inventor, Jerry Harvey. Appeal 2016-006715 Application 14/306,313 STATEMENT OF THE CASE2 The Invention Appellant's disclosed and claimed inventions "relate to the field of audio drivers." Spec. 12. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal: 1. A system comprising: a database including a representative audio signature generated by an analyzer using actual driver performance rather than desired driver performance, and the representative audio signature is selected to characterize an audio response of each of a plurality of audio drivers of a particular design; and a controller to generate preference data of any of the plurality of audio driver's audio responses based upon the representative audio signature and input from a user. 2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed May 19, 2015); Reply Brief ("Reply Br.," filed Sept. 30, 2015); Examiner's Answer ("Ans.," mailed July 31, 2015); Final Office Action ("Final Act.," mailed Dec. 19, 2014); and the original Specification ("Spec.," filed June 17, 2014). 2 Appeal 2016-006715 Application 14/306,313 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Loudspeaker Design Tutorial: Page 1, True AudioÂ® (Updated Monday, 26 September 2011), https://www.trueaudio.com/about_l.htm, accessed Aug. 20, 2014 (hereinafter "WinSpeakerz"). Common Loudspeaker Format, CLF Group, https ://web. archive, org/ web/ 20120322024747/http://www.clfgroup.org/index.htm, accessed Aug. 22, 2014 (hereinafter "CLF"). Thiele/Small From Wikipedia, the free encyclopedia, https://web.archive.org/web/20111128175833/ http:/len.wikipedia.org/wiki/Thiele/Small, accessed Dec. 13, 2014 (hereinafter "Thiele/Small"). Rejections on AppeaP Claims 1,2, and 4â€”22 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of WinSpeakerz and CLF. Ans. 4. CLAIM GROUPING Based on Appellant's arguments (App. Br. 10-16), we decide the appeal of the obviousness rejection of claims 1, 2, and 4â€”22 on the basis of representative claim 1. 3 We note Appellant misconstrues the Examiner's incorrect statement regarding joint inventors being named in the present application (Final Act. 4) and the conditions for applicability of 35 U.S.C. Â§ 103(c) as constituting a "rejection" of the claims. There is no such "rejection" in the application. Paragraph 6 in the Final Action appears to be a standard paragraph misapplied to this application which names a sole inventor and no other assignee, as pointed out by Appellant in the Appeal Brief (10). 3 Appeal 2016-006715 Application 14/306,313 ISSUE Appellant argues (App. Br.10â€”16; Reply Br. 5â€”18) the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103(a) as being obvious over the combination of WinSpeakerz and CLF is in error. These contentions present us with the following issue: Did the Examiner err in rejecting claim 1 under Â§ 103, allegedly because "the proposed modification would render Win unsatisfactory for its intended purpose of a speaker designer, and therefore there is no suggestion or motivation to make the proposed modification"? ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellant. We do not consider arguments Appellant could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. Â§ 41.37(c)(l)(iv). We disagree with Appellant's arguments with respect to claim 1, and we incorporate herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellant's arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Analysis Appellant contends "Independent claim 1 recites in part, 'a representative audio signature generated by an analyzer using actual driver 4 Appeal 2016-006715 Application 14/306,313 performance rather than desired driver performance, and the representative audio signature is selected to characterize an audio response of each of a plurality of audio drivers of a particular design.'" App. Br. 12. Appellant further argues, the Thiele-Small (T/S) "parameters are theoretical idealized parameters and not an actual audio signature as is claimed ... the T/S parameters are arbitrary representations and not an actual audio signature as is claimed. More in particular, any T/S parameter from any source is theoretical." App. Br. 13. In addition, "Win operates by a user selecting Thiele-Small parameters and Win generates a simulated audio signature of a speaker based upon the selected parameters." App. Br. 13â€”14 (citing Win pp. 1, 4). From this disclosure of Win, Appellant concludes the Examiner's rejection does not meet the standard that "'if the proposed modification would render the prior art invention being modified unsatisfactory for its intended purpose, then there is no suggestion or motivation to make the proposed modification." App. Br. 14 (citing MPEP 2143.01 Â§ V, and quoting In re Gordon, 733 F.2d 900, 221 USPQ 1125 (Fed. Cir. 1984)). According to Appellant, "any reference used to provide Win with an actual audio signature makes Win unsatisfactory for its intended purpose because Win is a speaker design system and if you already have the speaker as evidenced by the actual audio signature, there is no need for the designer, e.g. Win." App. Br. 14. Appellant further argues: Win is a speaker designer that uses a theoretical parameter based data entry system, e.g. discrete theoretical values, and there is no way of entering a complete audio signature from CFL into Win without changing the principle of operation of 5 Appeal 2016-006715 Application 14/306,313 Win and therefore the teachings of the references are not sufficient to render the claims prima facie obvious. Accordingly, it is submitted that independent claims 1, 12, and 20 are patentable over the prior art. App. Br. 15. Appellant concludes their arguments by asserting "all of the references cited thus far involve synthesis, which is not what is claimed. The claims clearly recite an audio signature generated by an analyzer using actual driver performance rather than desired driver performance, which is the opposite of synthesis." App. Br. 16. In response, the Examiner finds, and we agree: Win provides a driver database including a representative audio signature for each a plurality of drivers, (Win: P 21â€”23; Fig 15); the drivers suitable to be included into a speaker which a user of the Win system is designing. Win populates the driver database with manufacturer supplied representative audio signatures in a manner considered by Appellant to be a "desired driver performance(Win: P 21, 22; Fig 15) Appellant holds and Examiner agrees that this database does not comprise a representative audio signal generated by an analyzer using actual driver performance. Rather the database reflects the embodiment of paragraphs 36 and 40 of the instant specification wherein the representative audio signature is a measurement or a driver or small sample of drivers conflated upon a class or manufacturing run of drivers by the manufacturer, (see Win: Fig 15) That is to say, the representative audio signatures of the Win system comprise measurement values of a particular driver(s) (see Examiner provided Thiele/Small Wikipedia article 12/19/14: P 2: Small signal parameter values can be determined by measurement of a driver or small subset of drivers); the measurement values imputed as representative of a class or production run of drivers (see Thiele/Small article: P 6: Farge signal behavior are 6 Appeal 2016-006715 Application 14/306,313 averaged across a production run due to manufacturing variations and represent an idealized driver behavior.) Ans. 9 (emphasis added). Claim terms are to be given their broadest reasonable interpretation, as understood by those of ordinary skill in the art and taking into account whatever enlightenment may be had from the Specification. In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). We agree with the Examiner's findings and claim interpretation, particularly in light of Appellant's Specification at paragraphs 36 and 40, cited by the Examiner in the quotation above. The Examiner further finds, "Win does not teach away or exclude such an inclusion. Win embraces the entry of user driver data in the driver database. (Win: P 21: 'You can add new drivers to you Driver Database at any time') Examiner holds that a user wishing to design a speaker may possess a set of drivers which the user desires to include in a speaker design." Ans. 10. In the Reply Brief, Appellant argues, "Win requires Thiele-Small parameters to enter new drivers and the parameters are used to generate any graph of the driver . . . [but] the claims do not require Thiele-Small parameters to be known as evidenced by Fig. 2 of the specification that discloses the claimed 'audio signature generated by an analyzer using actual driver performance.'" Reply Br. 7. We are not persuaded because Appellant's arguments are not commensurate with the scope of the claim, which does not expressly 7 Appeal 2016-006715 Application 14/306,313 disclaim or otherwise preclude the use of Thiele-Small parameters to represent or input actual driver performance.4 Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 2 and 4â€”22 which fall therewith. See Claim Grouping, supra. REPLY BRIEF To the extent Appellant may advance new arguments in the Reply Brief (Reply Br. 5â€”18) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examinerâ€™s Answer will not be considered except for good cause (see 37 C.F.R. Â§ 41.41(b)(2)), which Appellant has not shown. 4 We also note, "[parameters values are almost never individually taken, but are at best averages across a production run, due to inevitable manufacturing variations. Driver characteristics will generally lie within a (sometimes specified) tolerance range .... [M]ost T/S parameters are linearized small signal values. An analysis based on them is an idealized view of driver behavior, since the actual values of these parameters vary in all drivers according to drive level, voice coil temperature, over the life of the driver, etc." Thiele/Small p. 6. 8 Appeal 2016-006715 Application 14/306,313 CONCLUSION The Examiner did not err with respect to the obviousness rejection of claims 1,2, and 4â€”22 under 35 U.S.C. Â§ 103(a) over the cited prior art combination of record, and we sustain the rejection. DECISION We affirm the Examiner's decision rejecting claims 1, 2, and 4â€”22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§41.50(f). AFFIRMED 9