Ex Parte LI et al

Patent Trial and Appeal Board

Jan 31, 2018

13644711 (P.T.A.B. Jan. 31, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/644,711 10/04/2012 Chunjian LI Q142700 1158
23373 7590 02/02/2018
SUGHRUE MION, PLLC
2100 PENNSYLVANIA AVENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
EXAMINER
OJO, OYESOLA C
ART UNIT PAPER NUMBER
2655
NOTIFICATION DATE DELIVERY MODE
02/02/2018 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHUNJIAN LI, MADS JAKOB HERRING JENSEN,
SOEREN CHRISTENSEN, and MARTIN MOERKEBJERG
Appeal 2016-005882
Application 13/644,7111
Technology Center 2600
Before JASON V. MORGAN, BRUCE R. WINSOR, and
PHILLIP A. BENNETT, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—24. An oral hearing was held January 16, 2018; a
transcript of the hearing will be placed in the record in due time. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant is the Applicant, WIDEX A/S, identified in the Appeal Brief as
the real party in interest. App. Br. 2.
Appeal 2016-005882
Application 13/644,711
Invention
Appellant discloses a hearing aid having a microphone and
microphone inlet, a housing, and a wind shield cover, wherein the wind
shield cover provides for sound to be guided in a gap between the wind
shield cover and the housing. A first dimension of a cross-section of the gap
being ranges between 0.15 mm and 0.5 mm while the minimum distance,
along the gap, from the microphone inlet and to the opening of the gap, is at
least 2 mm. Abstract; Spec. 3,11. 8—10.
Illustrative Claim
1. A hearing aid comprising a microphone, a signal processing
unit, an electrical-acoustical output transducer, a housing and a
wind shield cover, wherein:
the housing has a surface with a microphone inlet, and
the wind shield cover is adapted to be attached to the housing,
whereby to cover the microphone inlet and to provide together
with the housing a gap, said gap providing a conduit for the
transmission of sound from the surroundings and to said
microphone inlet, wherein the spacing between the housing and
the wind shield cover is in the range between 0.15 mm and 0.5
mm, and wherein the minimum distance along the gap from the
microphone inlet and to an edge of the wind shield cover is
larger than 2 mm and less than 3 mm.
Rejections
The Examiner rejects claims 1—7 and 9-24 under 35 U.S.C. § 103(a)
as being unpatentable over Jensen (US 7,894,621 B2; issued Feb. 22, 2011)
and Van Doom et al. (US 7,072,482 B2; issued July 4, 2006). Final Act. 4—
12.
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Application 13/644,711
The Examiner rejects claim 8 under 35 U.S.C. § 103(a) as being
unpatentable over Jensen, Van Doom, and De Pooter et al. (US 2008/
0118096 Al; published May 22, 2008). Final Act. 12—13.
ANALYSIS
In rejecting claim 1, the Examiner finds Jensen’s hearing aid shell 20
and windscreen 3 teach or suggest the basic elements of the claimed
invention, but that “Jensen does not explicitly disclose wherein spacing
between the housing and the wind shield cover is in the range between
0.15 mm and 0.5 mm.” Final Act. 5 (citing Jensen col. 3,11. 44—67, col. 4,
11. 2—35, and Figs. 1, 2, 4, and 5). The Examiner instead relies on Van
Doom’s spacing between housing 112 and sound inlet plate 50 to render
obvious modifying Jensen to include spacing within the claimed range (e.g.,
0.3 mm). Final Act. 5 (citing Van Doom col. 3,11. 13—59, Figs. 2A—B and
3). However, the Examiner acknowledges that “Jensen as modified by
[Van] Doom does not explicitly disclose and wherein the minimum distance
along the gap from the microphone inlet and to an edge of the wind shield
cover is larger than 2 mm and less than 3 mm3'' Final Act. 5 (emphasis
added). Therefore, the Examiner relies on the conclusion that “one of
ordinary skill in the art would appreciate providing these ranges by routine
experimentation ... to discover the optimum or workable ranges” to show
the claimed invention would have been obvious. Id. (citing MPEP
2144.05.11. A).
Appellant contends the Examiner erred because neither Jensen nor
Van Doom teach or suggest the claimed minimum distance along the gap
from the microphone inlet to an edge of the wind shield cover being larger
than 2 mm. Appellant notes that Jensen discloses slits 6 (the openings in
3
Appeal 2016-005882
Application 13/644,711
screen 3 that straddle two sides of resonance chamber 18) being about 3 mm
apart, thus making “it impossible for the distance from a slit to the
microphone inlet to be more than 1.5 mm.” App. Br. 7 (citing Jensen col. 3,
11. 7—20, Fig. 1). Appellant also notes that Van Doom’s depicted dimensions
of sound inlet plate 50 limit the distance from port 56 (i.e., a sound inlet port
with similar function to the claimed wind shield edge) to aperture 128 (i.e., a
microphone inlet) to 1.5 mm or less. App. Br. 7—8 (citing Van Doom col. 3,
11. 6-8, 10-12, Figs. 2A, 3).
The Examiner disagrees with Appellant’s characterizations of Van
Doom’s taught or suggested dimensions, which the Examiner finds are
based on assumptions rather than scientific or technical evidence. Ans. 3.
However, Appellant’s characterizations of the approximate dimensions
taught or suggested by Van Doom accord with the cited teachings of Van
Doom. See, e.g., Van Doom col. 3,11. 6—12. Moreover, as Appellant
correctly notes, Van Doom is “a microphone for use in a hearing aid, but it
is nonetheless only a microphone, not a hearing aid.” Reply Br. 6; see also
Van Doom col. 1,11. 56—60 (describing how the location of the sound inlet
opening eases installation of the microphone in a hearing aid). This
distinction between an outer hearing aid stmcture and the microphone
embedded within (and thus smaller than) the outer hearing aid stmcture
further supports Appellant’s contention that the dimensions taught or
suggested by Van Doom fall outside the claimed range.
Appellant further argues the Examiner’s erred in concluding the
claimed ranges would have been obvious as a result of routine
experimentation because “[tjhere is no evidence anywhere in the cited art
that the ‘working range’ of a microphone would be impacted at all by the
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Application 13/644,711
distance between the microphone inlet and [the] edge of the windscreen.”
App. Br. 10. The Examiner points to teachings in the Van Doom showing
“that the depth of recess 54 in figure 3 can be modified to affect the
frequency response.” Ans. 5—6 (citing Van Doom col. 4,11. 25—32).
However, Appellant persuasively contends “there is no suggestion that the
dimensions of a sound transmission channel passing underneath a wind
shield would have any impact on the frequency response of the
microphone.” Reply Br. 7. Moreover, we agree with Appellant that the
Examiner’s findings fail to show that “the dimensions chosen in the [Van]
Doom microphone are somehow transplantable to the outer stmcture of the
hearing aid.” Id. In particular, the Examiner’s findings do not show that it
would have been obvious to modify Jensen’s windscreen 3 based on the
cited teachings of Van Doom because the Examiner has not shown that “the
design considerations of the microphone would apply to the design of a wind
shield” and because Van Doom’s sound inlet “plate 50 is not exposed to the
wind [and] serves no wind protection function.” Id.
For these reasons, we agree with Appellant that the Examiner’s
findings do not show that the combination of Jensen and Van Doom renders
obvious “wherein the minimum distance along the gap from the microphone
inlet and to an edge of the wind shield cover is larger than 2 mm and less
than 3 mm,” as recited in claim 1. Similarly, the Examiner’s findings do not
show that the combination of Jensen and Van Doom renders obvious the
claimed dimensional variations of claim 10 (“a second dimension of the
cross-section of the sound transmission channel is at least 2 mm, and the
length of the sound transmission channel is larger than 2 mm and less than 3
mm”), claim 15 (“wherein the minimum distance along the gap from the
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Appeal 2016-005882
Application 13/644,711
microphone inlet and to an edge of the wind shield cover, is at least 3 mm”),
and claim 20 (“a second dimension of a cross-section of the sound
transmission channel, is at least 3 mm, and the length of the sound
transmission channel is at least 3 mm”). See, e.g., Final Act. 8—9 and 11.
The Examiner’s findings also do not show that De Pooter cures the noted
deficiencies of Jensen and Van Doom. See id. at 12—13.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejections of claims 1—24.
DECISION
We reverse the Examiner’s decision rejecting claims 1—24.
REVERSED
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