Ex Parte Kwatra et al

Patent Trials and Appeals Board

Apr 11, 2019

14578567 - (D) (P.T.A.B. Apr. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/578,567 12/22/2014
59912 7590 04/11/2019
MITCH HARRIS, LLC - CIRRUS
P.O. BOX 1269
ATHENS, GA 30603-1269
FIRST NAMED INVENTOR
Nitin Kwatra
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.
6187Pl919-Cl 1881
EXAMINER
THOMAS-HOMESCU, ANNE L
ART UNIT PAPER NUMBER
2659
MAIL DATE DELIVERY MODE
04/11/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
ExparteNITIN KWATRA, JEFFREY ALDERSON, and
JON D. HENDRIX
Appeal2018-004292
Application 14/578,567
Technology Center 2600
Before JOSEPH L. DIXON, ROBERT E. NAPPI, and
CARLL. SILVERMAN, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-004292
Application 14/578,567
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a microphone covering detection in
personal audio devices. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A personal audio device, compnsmg: a personal audio
device housing;
a transducer mounted on the housing for reproducing an
audio signal including both source audio for playback to a
listener and an anti-noise signal for countering the effects of
ambient audio sounds in the proximity of an acoustic output of
the transducer;
a plurality of microphones, including a first microphone
mounted on the housing that, when unobstructed, provides a first
microphone signal indicative of the ambient audio sounds,
wherein a second microphone of the plurality of microphones is
mounted on the housing and that, when unobstructed, provides a
second microphone signal indicative of the ambient audio
sounds; and
a processing circuit that implements a first adaptive filter
having a response that generates the anti-noise signal from the
first microphone signal, a second adaptive filter for generating
shaped source audio from the source audio and a combiner for
removing the shaped source audio from the second microphone
signal to generate an error signal provided to a coefficient control
block that controls coefficients of the first adaptive filter,
wherein the processing circuit implements a first signal level
1 Appellants indicate that Cirrus Logic, Inc. is the real party in interest.
(App. Br. 3).
2
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detector for detecting a first amplitude of a given one of the first
microphone signal or the second microphone signal to generate
a microphone level signal and a second signal level detector for
detecting a second amplitude of one of the plurality of
microphones other than the given microphone to generate a
reference level signal, wherein the processing circuit compares
the microphone level signal and the reference level signal, in
response to determining that differences between the microphone
level signal and the reference level signal indicate that the first
microphone is at least partially obstructed, halts adaptation of a
given one of at least one of the first adaptive filter or the second
adaptive filter or resets adaptation of the given adaptive filter by
setting coefficients of the given filter to a predetermined value to
prevent the anti-noise signal from being generated erroneously.
App. Br. 22-23 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ramakrishnan et al.
Konchitsky et al.
Zhang
Ivanov et al.
Asao et al.
US 2009/0196429 Al
US 2011/0091047 Al
US 2011/0099010 Al
US 2011/0317848 Al
US 8,526,627 B2
REJECTIONS
The Examiner made the following rejections: 2
Aug. 6,2009
Apr. 21, 2011
Apr. 28, 2011
Dec. 29, 2011
Sept. 3, 2013
Claims 21-23 stand rejected under 35 U.S.C. 112(a) as failing to
comply with the written description requirement.
2 The Examiner rejected all claims based upon non-statutory obviousness-
type double patenting and Appellants filed a terminal disclaimer on
September 21, 2017 to obviate the rejection.
3
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Application 14/578,567
Claims 1-5, 8-12, 14--18, 21, and 23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ramakrishnan in view of Asao further
in view of Konchitsky, and further in view of Zhang.
Claims 6, 7, 13, 19, 20, and 22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ramakrishnan in view of Asao,
Konchitsky, and Zhang, and further in view of Ivanov.
ANALYSIS
35 U.S.C. § 112(a), written description requirement3
To satisfy the written description requirement, the disclosure must
reasonably convey to skilled artisans that Appellants possessed the claimed
invention as of the filing date. Ariad Pharms., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (en bane).
Appellants contend that the difference in the disclosures between
paragraphs 23 and 24 of the Specification make
It [is] evident from the differences between the action taken in
step 72 of Figure 5 in which the anti-noise signal is muted and
the action taken in step 7 6, which does not call for muting the
anti-noise signal, that the ANC operation is continued after step
76 (but not after step 72) and thus it would be apparent to a
person of ordinary skill that the inventors had invented what is
Claimed, i.e., that the processing circuit (at least under some
circumstances) continues to generate the anti-noise signal after
the adaptation of the given adaptive filter is halted or the
coefficients of the adaptive filter are set to a predetermined
3 We note that the Examiner drafted the rejection stating that the claim
amendment was to the independent claims, but we note that the language is
only found in dependent claims 21-23, and which depend from independent
claims 1 and 14 and dependent claim 7 ( we assume Appellants intended the
dependency from independent claim 8 to be recited in claim 22 because the
claim states a "method" and dependent claim 7 is directed to a "personal
audio device, "and independent claim 8 is directed to a "method").
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constant value ( e.g., when level signal Lns is larger than level
signal Lerr) as required by dependent Claims 21-23.
(App. Br. 10).
With respect to dependent claims 21-23, the Examiner does not find
written description support in the originally filed Specification for the claim
language " ... or the second adaptive filter while continuing to generate the
anti-noise signal to prevent the anti-noise signal from being generated
erroneous! y."
The Examiner finds that paragraphs [0017]-[0020] and [0022]-[0023]
of the Appellants' Specification, as originally filed, merely discuss
generating an anti-noise signal, but there is no mention of "continuous"
generation when there is a halt or reset of the adaptation. (Ans. 17).
We agree with the Examiner's findings and similarly find no express
written description support which clearly and persuasively evidence
Appellants possessed the invention as recited in dependent claims 21-23 at
the time the original Specification was filed. Therefore, Appellants have not
shown error in the Examiner's finding of a lack of written description
support for dependent claims 21-23.
35 U.S.C. § 103(a)
For at least the reasons discussed below, we agree with and adopt the
Examiner's findings and legal conclusions, as set forth in the Final Action
and Answer. In our analysis below, we highlight and address specific
findings and arguments for emphasis.
Claims 1-5, 8-12, 14--18,
With respect to independent claims 1, 8, and 14, Appellants argue the
claims together. (App. Br. 12). Therefore, we select independent claim 1 as
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the representative claim for the group and will address Appellants'
arguments thereto. See 37 C.F.R. § 4I.37(c)(l)(iv) (2017). We do not
consider arguments that Appellants could have made but chose not to make
in the Brief so we deem any such arguments as waived. 37 C.F.R.
§ 4I.37(c)(l)(iv).
In the Reply Brief, Appellants repeat the arguments set forth in the
Appeal Brief and provide additional arguments in response to the
Examiner's responses to Appellants' arguments. Therefore, we address the
arguments in the Reply Brief.
With respect to representative independent claim 1, Appellants
contend that the Ramakrishnan reference uses "signal power, signal-to-noise
ratio (SNR), energy, correlation, and combinations thereof and/or
derivations thereof, but the claimed invention "compares the microphone
level signal and the reference level signal." (App. Br. 12-13; Reply Br. 6-
7).
Appellants further contend:
Asao discloses the use of obstacle detectors, which can be
pressure sensors, infrared sensors, gravimetric sensors or
cameras, but that the error microphones can be used by
generating a signal from the transducers and detecting a
deviation from the expected frequency response, which differs
from comparing signal levels and Zhang does not include
obstruction detection at all.
(App. Br. 14). Furthermore, Appellants contend that the:
combined disclosures of Ramakrishnan, Asao and Zhang do not
disclose or suggest a processing circuit that, in response to
determining that differences between the microphone level signal
and the reference level signal indicate that the first microphone
is at least partially obstructed, halts adaptation of the adaptive
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filter of a given one of at least one of the first adaptive filter or
the second adaptive filter or resets adaptation of the given
adaptive filter by setting coefficients of the given adaptive filter
to predetermined values to prevent the anti-noise signal from
being generated erroneously.
(App. Br. 14; Reply Br. 8).
Appellants individually address the individual deficiencies of each of
the Ramakrishnan, Asao, and Zhang references (App. Br. 13-15; Reply Br.
6-10) and finally contend that the Konchitsky reference
uses the term reset in the Abstract (and nowhere else, see e.g.,
"modified" at Konchitsky ,r [0043]), that is not the ordinary
meaning of the term reset in the art of control systems, nor is such
a meaning consistent with the Disclosure, in which the freezing
or resetting is not the ordinary updating of the coefficients, e.g.,
setting the coefficients to predetermined values in step 79 of Pig.
5 as described in the Specification at ,r [0024],
Konchitsky generally, and specifically in the Abstract, does not
suggest modifying the disclosures of Ramakrishnan, Asao and
Zhang to include the processing circuit operations recited in
Claim 1, specifically halting or resetting the adaptation. The
Final Office Action further indicates that predetermined values
can be determined by the equations given in Konchitsky. Such
an interpretation is unreasonably overbroad, since the
Specification does not define predetermined values as anything
other than the ordinary meaning of the term, which does not
include coefficient update values that are computed dependent
on the ambient conditions such as the update of coefficients via
the equations of Konchitsky at ,r,r [0049][0050], which produce
coefficient updates from a variable value, i.e., the error signal
e(n) in Konchitsky.
(App. Br. 15-16; Reply Br. 9-10).
"The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
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reference .... Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art." In re
Keller, 642 F.2d 413,425 (CCPA 1981); see also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review."); In re Nievelt, 482 F.2d 965,968 (CCPA 1973) ("Combining the
teachings of references does not involve an ability to combine their specific
structures."). Rather, "if a technique has been used to improve one device,
and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill." KSR Int'! Co. v.
Teleflex Inc., 550 U.S. 398,417 (2007). When considering the obviousness
of a combination of known elements, the operative question is, thus,
"whether the improvement is more than the predictable use of prior[ -] art
elements according to their established functions." Id.
Appellants clarify that the argument from the Appeal Brief is that
Ramakrishnan, Asao, Zhang and Konchitsky do not disclose or
suggest a first signal level detector for detecting a first amplitude
of a given one of the first microphone signal or the second
microphone signal, in part because Ramakrishnan contains the
only specific example of a signal measurement and that none of
the references, nor their combination, disclose or suggest a signal
level detector for detecting a first amplitude as specifically
recited in the Claims, which is distinct from the assertion in the
Examiner's Answer.
(App. Br. 13-14; Reply Br. 7).
We note that the language of independent claim 1 sets forth a
device personal audio device comprising ... a processing
circuit . . . wherein the processing circuit implements a first
signal level detector for detecting a first amplitude of a given one
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of the first microphone signal or the second microphone signal
to generate a microphone level signal and a second signal level
detector for detecting a second amplitude of one of the plurality
of microphones other than the given microphone to generate a
reference level signal.
We find the language of independent claim 1 does not recite a separate
element of a level detector, but recites the processing circuit manipulates
received data from a microphone signal to detect an amplitude of a
microphone signal. We further note that electrical power (P) equals voltage
(V) times current (I) or voltage2 (V2) divided by resistance (R). Hence, the
amplitude of the voltage is the square root of electrical power (P) times
resistance (R). Moreover, as taught by the Ramakrishnan reference the
signal to noise ratio is a ratio of the power signals which is related to the
voltage squared. If the signal and the noise are measured across the
same impedance ( similar microphones), the SNR can be obtained by
calculating the square of the amplitude ratio. Hence, there is a known direct
relationship as the Examiner indicates. (Ans. 6). We further agree with the
Examiner that the Ramakrishnan reference teaches and fairly suggests a
processing circuit that implements signal level detection because the claim
language does not specifically define the metes and bounds of a specific
measured quantity or electrical characteristic and the Ramakrishnan
reference teaches and fairly suggests the processing of electrical parameters.
Also, we find that Appellants recite the language of the claim and
generally contend that each of the Ramakrishnan, Asao, Zhang, and
Konchitsky references does not teach or suggest the claimed invention.
(App. Br. 9-16; Reply Br. 6-10).
Simply reciting the language of the claim is insufficient to show error.
See 37 C.F.R. § 4I.37(c)(l)(iv) ("A statement which merely points out what
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a claim recites will not be considered an argument for separate patentability
of the claim."). Merely alleging that the references fail to support an
obviousness rejection is insufficient to persuade us of Examiner error.
Attorney arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984); and Ex parte Belinne, No. 2009-004693, slip op. at 7-8
(BP AI Aug. 10, 2009) (informative), available at
http://www. uspto. gov /web/ offices/ dcom/bpai/its/f d09004693. pdf.
See also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that
the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.").
From our review of the Examiner's rejection, we find the Examiner
has found each of the elements of the claimed invention and provided a line
of reasoning to modify those elements in the combination. Moreover, the
Examiner has articulated reasons for the combination of the prior art
teachings from the four references and provided a rational underpinning to
support the legal conclusion of obviousness. (Final Act. 18-25; Ans. 6-9).
We find the Examiner has provided reasoned explanations in response to
Appellants' arguments. Appellants generally disagree and recite the
language of the claims and contend that the Examiner's interpretation of
"predetermined values" is unreasonably overbroad. (App. Br. 16; Reply Br.
10).
We disagree with Appellants and find that the Examiner has explained
the claim interpretation and how the prior art teaches and suggests the
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claimed invention. (Ans. 8). We further note that Appellants have not
identified any additional claim language in independent claim 1 setting forth
any limiting details to support Appellants' contention that the Examiner's
claim interpretation is overly broad or improper. See In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006), cited with approval in KSR Int 'l Co. v. Teleflex,
Inc., 550 U.S. 398,418 (2007) "[R]ejections on obviousness grounds ...
[require] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness."). That is, the Examiner has
provided a clear articulation of the reason why the claimed invention would
have been obvious because the Examiner has articulated the differences in
the claim over the reference and how the proposed modification of the
applied reference is necessary to arrive at the claimed invention. As a result,
we sustain the Examiner's decision in rejecting representative independent
claim 1 under 35 U.S.C. § 103(a).
We disagree with Appellants and find Appellants argue the claims
individually rather than what the combination would have taught and
suggested to one of ordinary skill in the art time of the invention as the
Examiner applied the references in the grounds of the rejection.
Dependent claims 6, 7, 13, 19, 20, and 22
With respect to dependent claims 6, 7, 13, 19, 20, and 22, Appellants
argue the claims together. As a result, we select dependent claim 6 as the
representative claim for the group and address Appellants' arguments
thereto. 37 C.F.R. § 4I.37(c)(l)(iv). We do not consider arguments that
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Appellants could have made but chose not to make in the Brief so we deem
any such arguments as waived.
With respect to representative dependent claim 6, Appellants contend
that the Ivanov reference adds nothing to further suggest a processing circuit
as disclosed in the limitations of independent claim 1. (App. Br. 17; Reply
Br. 11-12). Because we found no error in the Examiner's factual findings or
conclusion of obviousness and the Examiner did not rely upon the Ivanov
referenced for the proffered distinction, Appellants' argument does not show
error in the Examiner's conclusion of obviousness of representative
dependent claim 6. (App. Br. 16-17).
Dependent claims 21 and 23
Appellants contend that "[t]he Final Office Action asserts that the
calculated updates of Konchitsky are the predetermined constant values
recited in dependent Claims 21 and 23." (App. Br. 18; Reply Br. 12-13).
The Examiner maintains "claims 21-23 provide for a specific option
of claim 1 - i.e., resets adaptation of the given adaptive filter by setting
coefficients of the given filter to a predetermined value. Thus, the
Examiner's response given in section I apply here, too." (Ans. 9).
We find the Examiner's response does not address the specific claim
limitations and the Examiner's response in section I similarly does not
address Appellants' argument regarding "resets adaptation of the given
adaptive filter by setting coefficients of the given filter to a predetermined
constant value, while continuing to generate the anti-noise signal."
Furthermore, we agree with the Appellants that the Examiner has not
specifically identified any teaching or suggestion of the claimed "resets
adaptation of the given adaptive filter by setting coefficients of the given
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filter to a predetermined constant value, while continuing to generate the
anti-noise signal" as recited in the language of dependent claim 21 and 23.
Therefore, we cannot sustain the Examiner's obviousness rejection of
dependent claims 21 and 23.
Dependent claim 22
With respect to dependent claim 22, Appellants argue claim 22 with
dependent claim 6 above and separately argue the claim. Therefore, we
address independent claim 22 separately. Appellants contend that the
Examiner erred in contending "that the calculated updates of Konchitsky are
the predetermined constant values recited in dependent Claim 22." (App.
Br. 19; Reply Br. 13-14). Again, the "Examiner notes that claims 21-23
provide for a specific option of claim 1 - i.e., resets adaptation of the given
adaptive filter by setting coefficients of the given filter to a predetermined
value. Thus, the Examiner's response given in section I apply here, too."
We agree with the Appellants that the Examiner has not specifically
identified a teaching or suggestion of the claimed limitation "resetting
adaptation of the given adaptive filter sets coefficients of the given adaptive
filter to a predetermined constant value while the generating of the anti-noise
signal continues to generate the anti-noise signal" as recited in the language
of dependent claim 22. Therefore, we cannot sustain the Examiner's
obviousness rejection of dependent claim 22.
CONCLUSIONS
The Examiner did not err in rejecting claims 21-23 based upon a lack
of written description support under 35 U.S.C. § 112(a), and the Examiner
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did not err in rejecting claims 1-7, 8-13, and 14--20, but the Examiner erred
in rejecting claims 21-23 based upon obviousness under 35 U.S.C. § 103.
DECISION
For the above reasons, we affirm the Examiner's lack of written
description support rejection of claims 21-23, and we affirm the Examiner's
obviousness rejection of claims 1-7, 8-13, and 14--20, but we reverse the
Examiner's obviousness rejection of claims 21-23.
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(±).
AFFIRMED
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