Ex Parte Henriksen et al

Patent Trial and Appeal Board

May 2, 2016

13192275 (P.T.A.B. May. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/192,275 07/27/2011
14941 7590 05/25/2016
HONEYWELL/CONLEY ROSE
Honeywell International Inc
115 Tabor Road
PO Box 377
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Viggo Henriksen
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.
H29079_4351-00202 5685
EXAMINER
CERIONI, DANIEL LEE
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
patentservices-us@honeywell.com
dallaspatents@dfw.conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VIGGO HENRIKSEN, TR YM HOLTER,
OLAV KV ALOY, ASLE MEL V AER,
GEORG ESA OTTESEN,
ODD KRISTEN OSTERN PETTERSEN, JARLE SVEAN,
and SVEIN SORSDAL 1
Appeal2014-004995
Application 13/192,27 5
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method of screening for hearing loss. The claims are rejected as obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the Real Party in Interest is NACRE AS (App.
Br. 3).
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Application 13/192,275
STATEMENT OF THE CASE
The Specification describes a method for protecting and testing
hearing in loud, potentially damaging environments (Spec. i-f 4). Claims 1,
2, and 11-28 are on appeal. Claim 11 is illustrative and reads as follows
(emphasis added):
11. A method for preliminarily screening for hearing loss of a
user, the method comprising:
sealing the user's ear canal from exposure to a potentially
damaging external noise environment during a work shift by
applying a hearing protection device; and
running an automated audiometric test session without
removing the hearing protection device to determine the user's
hearing threshold;
wherein the hearing protection device is worn by the user
for a period of time substantially greater than the duration of the
audiometric test session; and the period of time that the hearing
protection device is worn is substantially the duration of the work
shift.
The claims stand rejected as follows:
I. Claim 2 stands rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
II. Claims 11, 12, 20-22, 24, 27, and 28 stand rejected under
35 U.S.C. § 103(a) as being obvious based on Koekemoer2 and Michael. 3
III. Claims 1, 13, 14, 16-19, and 23 stand rejected under 35 U.S.C.
§ 103(a) as being obvious based on Koekemoer, Michael, and Edwards. 4
2 Koekemoer et al., WO 2008/139404 Al, published Nov. 20, 2008.
3 Michael, US 6,456,199 Bl, issued Sept. 24, 2002.
4 Edwards et al., US 2003/0083591 Al, published May 1, 2003.
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IV. Claims 2, 15, 5 25, and 26 stand rejected under 35 U.S.C.
§ 103(a) as being obvious based on Koekemoer, Michael, Edwards, and
Harrison. 6
I.
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claim 2 as indefinite. We disagree with Appellants and affirm the
Examiner's conclusion of indefiniteness.
"The test for definiteness is whether one skilled in the art would
understand the bounds of the claim when read in light of the specification."
Miles Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir. 1993). "[I]f
a claim is amenable to two or more plausible claim constructions, the
USPTO is justified in requiring the applicant to more precisely define the
metes and bounds of the claimed invention by holding the claim ...
indefinite." Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BP AI 2008)
(precedential).
We agree with the Examiner that claim 2 is ambiguous because the
claim phrase "each of the sound stimuli is a chirp varying in frequency" is
amenable to conflicting constructions (Ans. 2). In particular, this claim
phrase can be interpreted as meaning that each sound stimulus is a chirp that
varies in frequency throughout its duration, or instead meaning that each
sound stimulus is a chirp that has a constant frequency throughout its
5 We note that although the Examiner discussed Michael in the rejection of
claim 11, from which claim 15 depends (Ans. 3), as the result of an
inadvertent typographical error, Michael was not listed in the heading
summarizing the rejection (id. at 16).
6 Harrison et al., US 2004/0006283 Al, published Jan. 8, 2004.
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duration, but varies in frequency relative to the other sound stimuli (id.).
The Examiner demonstrates the ambiguity in two scenarios:
A first scenario encompasses a sound stimulus emitted from a
device for 200 millisecond[ s ], where during the first 100
milliseconds the sound stimulus is emitted at a first frequency,
and then during the second 100 millisecond[s], the frequency is
modulated to a second frequency different from the first
frequency. A second scenario encompasses a first sound
stimulus [that] may be emitted from a device for 200
millisecond[s], where the frequency of the first sound stimulus is
constant for all 200 milliseconds. However, the device may then
emit a second sound stimulus for 200 milliseconds, where the
frequency of the second sound stimulus [] is constant for all 200
milliseconds, but the frequency of the second sound stimulus is
different from the frequency of the first sound stimulus.
(Id. at 33.)
Accordingly, a preponderance of the evidence of the record supports
the Examiner's conclusion that claim 2 is indefinite.
II.
The Examiner has rejected claims 11, 12, 20-22, 24, 27, and 28 under
35 U.S.C. § 103(a) as being obvious based on Koekemoer and Michael.
Findings of Fact
FF 1. The Specification discloses that
In many industrial settings, workers are routinely exposed
to potentially damaging noise environments during their
workday. The issue of potential hearing damage often arises in
manufacturing and other industrial facilities, but may also arise
in military settings, airport settings, and other work
environments that involve potentially damaging noise exposure.
There is a need to both protect against hearing damage and also
to monitor workers' hearing to determine if there has been any
significant hearing loss due to environmental noise. Hearing
protection and hearing monitoring may work synergistically
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together to provide improved hearing protection, since the ability
to monitor for hearing loss allows for better evaluation of the
effectiveness of the hearing protection and allows for corrective
action to be taken at an early stage (which may limit permanent
hearing loss, possibly by allowing action at the first signs of
temporary hearing loss).
(Spec. i-f 5; see also Ans. 23-24.)
FF 2. Koekemoer discloses
an audiometer ... [and] a method of conducting audiometry.
The audiometer [] includes at least one circum-aural earphone []
for positioning over an ear of a patient, the circum-aural
earphone [] including a microphone [] directed outwardly for
receiving external or ambient sound, and an acoustic speaker []
directed inwardly. The audiometer [] also includes at least one
inner earphone [] operatively arranged within the circum-aural
earphone [],the inner earphone []including an in ear piece [] for
positioning in the ear, a microphone [] directed outwardly, and
an acoustic speaker [] directed operatively inwardly. The
audiometer [] further includes a control module configured to
perform a first phase of active noise reduction and a second phase
of active noise reduction and to emit a hearing-test sound via the
speaker [] of the inner earphone [].
(Koekemoer Abstract; see also Ans. 3, 24.)
FF 3. Koekemoer discloses that "[b ]y monitoring the response (or
lack of response) of the patient, the hearing threshold level of the test subject
can be determined" (Koekemoer 1: 18-19; see also Ans. 24 ). Koekemoer
further discloses that "[t]o assess whether or not these types of hearing
losses are present and to what extent they are present, different types of
hearing tests have to be done" (Koekemoer 1:18-25; see also Ans. 24).
FF 4. Koekemoer discloses that "active noise reduction may be
performed using conventional ANR methods and algorithms," "the control
module is configured to perform a first phase of active noise reduction using,
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as an input, sound received by the microphone [] of the circum-aural
earphone [] and delivering an output via the speaker[]," and "the control
module is configured to perform a second phase of active noise reduction
using, as an input, at least sound received by the microphone [] of the inner
earphone[] and delivering an output via the speaker" (Koekemoer 10: 19--25;
see also Ans. 28-29).
FF 5. Koekemoer discloses that "[ c ]onventional audiometry requires
very low ambient noise levels in order to determine a hearing threshold level
of the patient" (Koekemoer 16:30-31; see also Ans. 29).
FF 6. Michael discloses
An apparatus adapted to be worn in an environment in
which unsafe noise levels may be present for the purpose of
continuously monitoring the noise level impinging upon the
ear(s) of a user. . . . The noise level is recorded along with its
duration to calculate a cumulative noise dose for an individual
user, and to warn the user of when the noise dose exceeds a preset
level. . . . A method of using an apparatus as described, or a
similar device, to continuously monitor an individual's noise
exposure is also disclosed.
(Michael Abstract; see also Ans. 24.)
FF 7. Michael discloses "a system and method for reducing noise
exposure and for the continuous monitoring of personal noise exposure. It
involves the integration of personal noise dosimetry with a standard hearing
protector in such a manner that, the worker's actual noise exposure is
accurately measured under all acceptable wearing conditions" (Michael
3:16-21; see also Ans. 24).
FF 8. Michael discloses that "there is a need for a device that
provides a means of continuously monitoring an individual's actual noise
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exposure rather than simply measuring either hearing protector attenuation
or unprotected individual exposure" (Michael 3:35-39; see also Ans. 24).
FF 9. Michael discloses that
[ o ]ver a period of time the data gathered represent a complete
noise exposure history during the employees' work tenure. This
type of exposure history may be valuable to the employer if the
employee should seek compensation for work-related hearing
loss, since the continuous measurements are performed daily,
and will definitively determine if noise exposure is incurred on
or off the job.
(Michael 4:4--11; see also Ans. 25.)
FF 10. Michael discloses that
It is unrealistic to assume that the worker will wear hearing
protectors during the entire work shift. Hearing protectors, in
fact, should be removed during periods of relative quiet to
enhance the overall safety of the worker. An important and
unique aspect of the current invention is that the CMD
[ (continuous monitoring device)] samples the noise impinging
on the microphone both when the CMD is worn in or over the
ear, and when the CMD is worn off the ear in a secondary
position, thereby calculating the total noise dose incident to the
wearer's ear.
(Michael 4:21-29; see also Ans. 26-27.)
FF 11. Michael discloses "allowing accurate measurement of
noise exposure over the course of the entire workday, wherein the typical
workday includes periods when the CMDs are worn and periods when they
are not worn" (Michael 4:57---60; see also Ans. 26).
FF 12. Michael discloses "measuring a protected noise exposure
level and an unprotected noise exposure level incident upon the ear of the
individual; [and] calculating the individual's cumulative noise exposure dose
for a given period of time" (Michael 12:48-52; see also Ans. 27).
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Analysis
We have considered, but do not find persuasive, Appellants'
arguments that the Examiner erred in concluding that the claimed method for
screening for hearing loss of a user is obvious over Koekemoer and Michael.
We address Appellants' arguments below.
Initially, Appellants contend that the teachings of Koekemoer and
Michael cannot be combined because they are non-analogous art (App.
Br. 14; see also Reply Br. 5-6). More specifically, Appellants argue that
Koekemoer relates to audiometry or hearing testing while Michael relates to
dosimetry or noise exposure monitoring (App. Br. 14.).
We are not persuaded. As the Examiner explains, Koekemoer relates
to hearing testing and monitoring responses in order to prevent hearing loss
(Ans. 24; FF 2-3). Michael relates to dosimetry, monitoring noise level and
hearing protection (Ans. 24; FF 6-7). We agree with the Examiner that
Koekemoer and Michael are analogous art because both are in the same field
of endeavor: excessive noise and hearing protection; and both are pertinent
to the same problem: excessive noise and hearing protection (Ans. 23-24).
Indeed, we note that the Specification itself acknowledges the relationship
between noise monitoring and protection from hearing damage (Ans. 24;
FF 1).
Regarding claim 21, Appellants contend that the cited combination
fails to teach "compiling [results from the] series of partial audiometric test
sessions over a plurality of work shifts to create an audiometric profile"
(App. Br. 15; see also Reply Br. 6-8). More particularly, Appellants argue
that Michael relates to detecting noise exposure over the course of an entire
day and tracking noise exposure history over a period of time, such that the
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data that is collected is different from "audiometric test session data relating
to a user's hearing threshold" that can be compiled to create an audiometric
profile (App. Br. 15-16).
We do not find this argument persuasive. As an initial matter, we
agree with the Examiner that Michael's teaching that "[ o ]ver a period of
time the data gathered represent a complete noise exposure history during
the employees' work tenure" (FF 9), and that such "continuous
measurements are performed daily, and will definitively determine if noise
exposure is incurred on or off the job" (id.) disclose an "audiometric
profile," as recited in claim 21 (Ans. 25).
We further agree with the Examiner that Michael discloses compiling
results from the series of partial audiometric tests sessions over a plurality of
working shifts to create the above described audiometric profile (id. at 25-
26). Michael observes that "[i]t is unrealistic to assume that the worker will
wear hearing protectors during the entire work shift. Hearing protectors, in
fact, should be removed during periods of relative quiet to enhance the
overall safety of the worker" (FF 10). Accordingly, Michael explains that
the disclosed method permits the "accurate measurement of noise exposure
over the course of the entire workday, wherein the typical workday includes
periods when the CMDs are worn and periods when they are not worn"
(FF 11 ). In addition, as explained above, Michael teaches that data is
gathered over "employees' work tenure" (FF 9). In view of these
disclosures, we agree with the Examiner that Michael discloses "compiling
[results from the] series of partial [audiometric] test sessions ... over a
plurality of work shifts ... to create an audiometric profile" (Ans. 24--26).
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In regard to claims 12 and 22, Appellants contend that "there is no
teaching of performing only one partial audiometric test session per work
shift" because Michael relates to detecting cumulative noise exposure
instead of audiometric testing (App. Br. 16; see also Reply Br. 8-9).
Appellants further argue Michael does not teach limited testing per shift but
instead teaches monitoring noise exposure throughout the entire work day
(App. Br. 16).
We agree with the Examiner that Michael teaches "'measuring a
protected noise exposure level and an unprotected noise exposure level
incident upon the ear of the individual"' (Ans. 26-27; FF 10) and therefore
teaches "performing only one partial audiometric test session per work
shift." See Merck & Co. v. Biocraft Labs. Inc., 874 F.2d 804, 807 (Fed. Cir.
1989) ("'the fact that a specific [embodiment] is taught to be preferred is not
controlling, since all disclosures of the prior art, including unpreferred
embodiments, must be considered."') (quoting In re Lamberti, 545 F.2d 747,
750 (CCPA 1976)).
We likewise find unpersuasive Appellants' contention, presented for
the first time in the Reply Brief, that the Examiner overlooked the claim
limitation "to a single frequency in a single ear of the user" (Reply Br. 8-9).
As an initial matter, arguments not raised in the Appeal Brief or not
responsive in the Examiner's Answer, will not be considered unless good
cause is shown. 37 C.F.R. § 41.41(b)(2). Moreover, Appellants' assertion
ignores the Examiner's finding, set forth in the Final Rejection, and restated
in the Answer, that "Koekemoer further discloses wherein the audiometric
test session is a partial test session relating to a single frequency in a single
ear of the user (page 4, lines 24-27, page 14, lines 19-23) (also see page 15,
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lines 19-20)" (Final Rej. 5; Ans. 3; see also Final Rej. 6-7 (discussing claim
22); Ans. 6 (discussing claim 22)). The Examiner additionally determines
that a skilled artisan would have been motivated to combine Koekemoer
with Michael "for the obvious advantage of sampling the noise level during
the only one partial test session to compare it against a threshold and
determine if the sampled noise level exceeds a threshold level thereby saving
time from having to measure a noise level for an entire work shift" (Final
Rej. 5; Ans. 4--5; see also Final Rej. 7 (discussing claim 22); Ans. 6
(discussing claim 22)). Accordingly, we affirm the rejection of these claims.
Concerning claim 27, Appellants argue that Koekemoer's active noise
reduction which uses a counter-signal to cancel noise, does not perform the
recited step of filtering detected external sound to safe levels, and
transmitting filtered external sound into the sealed ear canal (App. Br. 17;
see also Reply Br. 9-10). Appellants further argue that Koekemoer does not
teach deactivating its active noise reduction during testing (App. Br. 17; see
also Reply Br. 9-10).
We are not persuaded. We agree with the Examiner that Koekemoer's
teaching of acquiring an external sound, converting it to a signal, and
reproducing it to a safe level satisfies the filtering and transmitting steps of
claim 27 (Ans. 28-29; FF 4). We also agree with the Examiner that because
Koekemoer teaches minimizing noise level for audiometric testing (FF 5), it
would have been obvious to deactivate external sound transmission
(Ans. 29-30).
Concerning claim 28, Appellants contend that Koekemoer fails to
disclose triggering a test session when detected sound reaches a potentially
damaging noise level (App. Br. 18; see also Reply Br. 10).
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We disagree. We agree with the Examiner that many levels of noise
can be "potentially damaging," and further, that Koekemoer discloses testing
"when there is too much ambient noise above a threshold level that may be
potentially damaging to an individual sensitive to sound," such that
Koekemoer's testing reads on this claimed limitation (Ans. 30-31; FF 2-5).
Because Appellants do not argue separately claims 20 and 24, we
affirm the rejection of these claims.
III.
The Examiner has rejected claims 1, 13, 14, 16-19, and 23 under
35 U.S.C. § 103(a) as being obvious based on Koekemoer, Michael, and
Edwards.
We have considered, but do not find persuasive Appellants'
arguments that the Examiner erred in concluding that the claimed method for
preliminary hearing loss screening is obvious over Koekemoer, Michael, and
Edwards. We address Appellants' arguments below.
Appellants again assert that Koekemoer and Michael are not
analogous art (App. Br. 18-19). We disagree for the reasons set forth above.
Regarding claim 19, Appellants contend that Michael does not teach
performing only one partial audiometric test session per work shift, or
compiling a series of partial test session over a plurality of work shifts to
create a work profile, that Michael relates to detecting cumulative noise
exposure instead of audiometric testing, and that Michael teaches monitoring
throughout the entire work day (id. at 19-20). We are not persuaded for the
reasons discussed above.
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IV.
The Examiner has rejected claims 2, 15, 25, and 26 under 35 U.S.C.
§ 103(a) as being obvious based on Koekemoer, Michael, Edwards, and
Harrison.
Findings of Fact
FF 13. Harrison discloses that "[i]f the determination is no, the
pure tone initial intensity determination module determines at step 805
whether a threshold intensity already exists for the ear being tested at a
lower frequency" (Harrison i-f 76; see also Ans. 34).
Analysis
In regard to claims 2, 15, and 25, we have considered, but do not find
persuasive Appellants' arguments that the Examiner erred in concluding that
the claimed method for preliminary hearing loss screening is obvious over
Koekemoer, Michael, Edwards, and Harrison. We address Appellants'
arguments below.
Appellants contend that Harrison teaches pure tones for testing and
therefore, does not teach using a chirp that varies in frequency as a stimulus
(App. Br. 21-22; see also Reply Br. 11).
We are not persuaded. As the Examiner explains, the claim phrase
"sound stimuli is a chirp varying in frequency" is ambiguous (Ans. 32-34).
For the reasons set forth above, we agree with the Examiner that one
plausible interpretation of this claim phrase is that the sound stimuli, each
one being a chirp, vary in frequency with respect to each other. Thus, we
agree with the Examiner that the pure tones, varying in frequency with
respect to each other, that are taught by Harrison (FF 13) read on this
claimed limitation (Ans. 34).
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In regard to claim 26, however, we agree with Appellants that the
Examiner erred in rejecting this claim, as the Examiner does not show that
Harrison teaches that "'each chirp varies in frequency about 0.7 kHz over an
interval of about 100-500 ms"' (App. Br. 22).
Accordingly, we affirm the rejection of claims 2, 15, and 25, and
reverse the rejection of claim 26.
SUMMARY
We affirm the rejection of claim 2 under 35 U.S.C. § 112, second
paragraph, as being indefinite.
We affirm the rejection of claims 11and21under35 U.S.C. § 103(a)
based on Koekemoer and Michael. Claims 12 and 20 fall with claim 11 and
claims 22, 24, 27, and 28 fall with claim 21.
We affirm the rejection of claims 1, 13, 14, 16-19, and 23 under
35 U.S.C. § 103(a) based on Koekemoer, Michael, and Edwards.
We affirm the rejection of claims 2, 15, and 25 under 35 U.S.C.
§ 103(a) based on Koekemoer, Michael, Edwards, and Harrison.
We reverse the rejection of claim 26 under 35 U.S.C. § 103(a) based
on Koekemoer, Michael, Edwards, and Harrison.
TIME PERIOD FOR RESPONSE
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).
AFFIRMED-IN-PART
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