Ex Parte Meister et al

Patent Trial and Appeal Board

Nov 16, 2018

14488414 (P.T.A.B. Nov. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/488,414 09/17/2014
2101 7590 11/20/2018
Sunstein Kann Murphy & Timbers LLP
125 SUMMER STREET
BOSTON, MA 02110-1618
FIRST NAMED INVENTOR
Dirk Meister
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.
1941/1018 9010
EXAMINER
GRAND, JENNIFER LEIGH-STEW AR
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
11/20/2018 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):
usptomail@sunsteinlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIRK MEISTER, MATHIAS KALS,
and PETER SCHLEICH
Appeal2017-010773 1
Application 14/488,414
Technology Center 3700
Before RICHARD M. LEBOVITZ, TIMOTHY G. MAJORS, and
DAVID COTTA, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims directed to a signal processing
arrangement for generating electrode stimulation signals to stimulation
contacts in a cochlear implant electrode array. The Examiner rejected the
claims under 35 U.S.C. § 102 as anticipated and under 35 U.S.C. § 103 as
obvious. Appellants appeal the Examiner's determination that the claims are
unpatentable. We have jurisdiction under 35 U.S.C. § 6(b). The§§ 102 and
103 rejections are affirmed-in-part.
1 The real-party-in-interest is listed as Med-El Elektromedizinische GmbH in
the Appeal Brief ("Br.") on page 2.
Appeal2017-010773
Application 14/488,414
STATEMENT OF THE CASE
The Examiner finally rejected claims 1-14 as follows:
Claims 1-3, 5-10, and 12-14 under 35 U.S.C. § I02(a)(l) as
anticipated by Meister et al. (U.S. Pat. Appl. Publ. 2012/0004706 Al,
published Jan. 5, 2012) ("Meister"). Ans. 2.
Claims 4 and 11 under 35 U.S.C. § 103 as obvious in view of Meister.
Ans. 7-8.
Independent claim 1, which is representative, is reproduced below:
1. A signal processing arrangement for generating electrode
stimulation signals to stimulation contacts in a cochlear implant
electrode array, the arrangement comprising:
a signal filter bank configured to transform an input
sound signal into a plurality of band pass signals each
representing an associated frequency band of audio frequencies;
an envelope processing module configured to process the
band pass signals in a sequence of sampling time frames,
wherein for each time frame, the processing includes
calculating for each band pass signal at least one signal
envelope higher order dynamic property that is changing during
the time frame; and
a channel selection module configured to select in each
time frame, one or more of the band pass signals based on the
higher order dynamic properties to produce the electrode
stimulation signals to the stimulation contacts.
Br. 14 (Claims Appendix).
ANTICIPATION REJECTION
Rejection and issue
Claim 1 is directed to a "signal processing arrangement for generating
electrode stimulation signals to stimulation contacts in a cochlear implant
electrode array." The arrangement is claimed to comprise three components:
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Application 14/488,414
a signal filter bank, an envelope processing module, and a channel selection
module. The Examiner found that Meister describes a signal processing
arrangement with all three components recited in claim 1, anticipating the
claim under 35 U.S.C. § 102. Final Act. 2-3.
Appellants do not dispute that Meister describes a signal filter bank
and envelope processing module as claimed ("The teachings of the Meister
reference are similar as to the first two elements."). Br. 6. However,
Appellants contend that Meister does not describe a channel selection
module with all the features required by the claim. Id.
The claimed "channel selection module" is recited in claim 1 to be
"configured to select in each time frame, one or more of the band pass
signals based on the higher order dynamic properties to produce the
electrode stimulation signals to the stimulation contacts." Appellants argue
that "selecting is what is novel and inventive in Claim 1 that is not taught or
suggested by the Meister prior art reference." Br. 6. Appellants contend
that in claim 1 "each and every band pass signal is not used to produce the
stimulation signal." Id. at 10. Appellants contend that while Meister may
perform different signal processing on different bandwidths, Meister
processes "each of the band pass signals" such that "a corresponding
Stimulation Timing Signal ... will be generated- always." Id. In contrast,
Appellants contend that the claimed channel selection module is configured
such that:
... at different moments in time, different numbers of band
pass channels are used to produce the stimulation signals,
sometimes there may be just a few different signal channels, at
other times, there may be many different signal channels,
depending [on] how "at least one signal envelope higher order
dynamic property" is changing at any given moment in time.
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Application 14/488,414
Id.
The Examiner, citing paragraph 42 of Meister, found that Meister
describes performing "higher order" processing on band pass signals. Ans.
9--10. The Examiner states that the disputed limitation is an "intended use"
and that Meister is "configured to use one or more of the bandpass signals
based on 'higher order dynamic properties' to produce stimulation signals to
the stimulation contacts." Id. at 11.
Paragraph 42 of Meister, relied upon by the Examiner as teaching the
claimed channel selection module, discloses that of the 12 channels carrying
band pass signals, channels 1-3 are processed differently than channels 4--
12. While channels 4--12 are processed by FSL processing, "Channels 1-3
are lower frequency channels that were not selected for FSL processing ...
because their bandwidth is too low to contain unresolved harmonics of an
average human speaker." Meister ,r 42. Rather, "Channels 1-3 are
processed similar to FSP with pulses at zero-crossings of the band pass time-
signal." Id. Thus, while Meister applies different processing algorithms to
the band pass signals, Meister uses all the channels to produce electrode
stimulation signals. This fact is not disputed by the Examiner.
Appellants do not argue that the band pass signals in each channel of
Meister are not subject to "higher order" processing as required by claim 1.
Instead, Appellants argue that the "configured to select" language in the
claim requires that the channel selection module use the higher order
properties to select which channels to use "to produce the electrode
stimulation signals" and that the claimed module is configured to not
necessarily select all the channels to produce stimulation signals to the ear.
Br. 10.
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Application 14/488,414
Thus, the key issue in this rejection is whether the "configured to
select" limitation recited in the "channel selection module" is met by the
module of Meister which uses all the channels to produce electrode
stimulation signals.
Analysis
We begin with the claim language. During ex parte prosecution,
claims are given their broadest reasonable interpretation consistent with the
description of the invention in the specification. In re Zietz, 893 F.2d 319,
321 (Fed. Cir. 1989). In this case, the channel selection module is
"configured to select ... one or more of the band pass signals ... to produce
the electrode stimulation signals" based "on the higher order dynamic
properties." The term "configured" is not defined in the Specification.
Accordingly, we adopt its definition in a general purpose dictionary to mean
"set up for operation especially in a particular way. " 2 Thus, the module
must be set up to choose ("select") one or more of the band pass signals to
produce the electrode stimulation signals that are applied to the auditory
nerve. While the claim covers the selection of only one of the band pass
signals, or as many as all of the band pass signals, where each selection is
based on its higher order dynamic properties, the module must be set up to
choose which signals to use "to produce the electrode stimulation signals."
Accordingly, we do not agree with the Examiner that "configured to select"
is simply an "intended use" of the claimed "channel selection module.
2 https://www.merriam-webster.com/dictionary/configure (last accessed
November 7, 2018).
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Application 14/488,414
Rather, the module must be set up and comprise a structure that chooses a
signal based on its higher order dynamic properties.
Consistent with our interpretation, Figure 6 of the Specification shows
a channel selection module with a structure that selects two channels from
six channels for stimulation. Spec. 34. Figure 6 is reproduced below:
., .... ..._.
' \ . ..,:.'~
...,.;
As explained in the Specification, the embodiment of Figure 6 shows
"m=6 input band pass channels where n=2 channels [88 and 180] with the
maximum values of the dynamic property C are selected for stimulation."
Spec. ,r 34. The Specification further discloses that the "channel selection
module 503 sets the output values of the selected channels [88 and 180] to
one and the remaining m-n channels are set to output values of zero (and
therefore not selected for stimulation)." Id.
The Examiner did not establish that Meister teaches or suggests a
module which selects "one or more" band pass channels to produce
electrode stimulation signals as required by claim 1. The use of all the
signals for electrode stimulation is described by Meister and covered by the
claims, but that teaching is insufficient alone to meet the claim limitation
because a module must also be set up to select the band pass signals based
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Application 14/488,414
on their higher order dynamic properties. The Examiner did not assert that
Meister's disclosure described a module with that capability, but rather
based the rejection on an interpretation of the claim that only required higher
order dynamic properties to be applied to the band pass signals and
characterized "configured to select" limitation as an intended use, which did
not structurally distinguish over Meister's teachings. Because we do not
agree with the Examiner's claim interpretation, we reverse the rejection of
claim 1, and dependent claims 2, 3, and 5-7.
Claim 8
Claim 8 is a method claim which comprises a step of "selecting in
each time frame, one or more of the band pass signals based on the higher
order dynamic properties to produce the electrode stimulation signals to the
stimulation contacts."
We decide the rejection of this claim differently than claim 1. While
claim 1 is required to have a structure which can select "one or more of the
bandpass signals," such a structure is not recited in claim 8. The claim is
met when one or more of the band pass signals are selected. Appellants did
not dispute the Examiner's finding (Final Act. 7; "Meister discloses wherein
one band pass signal is selected for each time frame based on the higher
order dynamic properties") that all the band pass signals in Meister are
selected based on higher order dynamic properties. Consequently, we
conclude that the "selecting" step is met by Meister. Appellants did not
dispute that all other limitations in the claim are met by Meister.
Consequently, the anticipation rejection of claim 8 is affirmed. Dependent
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claims 9, 10, and 12-14 were not argued separately and thus fall with claim
8. See 37 C.F.R. 4I.37(c)(l)(iv).
OBVIOUSNESS REJECTION
The Examiner rejects claims 4 and 11 as obvious over Meister. Ans.
7-8. With regard to claim 4, the Examiner finds that Meister does not
explicitly teach the recited limitation that the pulse scaling module follows
the channel selection module, but that it would have been obvious to
rearrange these modules for purposes of accuracy. Id. at 8. The Examiner
also found the Meister does not teach the step of weighting follows the step
of selecting as in claim 11, but found it would have been obvious to do so to
provide higher accuracy. Id.
Appellants rely only on their arguments related to anticipation in
responding the obviousness rejection. App. Br. 13.
For reasons explained above, Appellants' argument is persuasive as to
claim 4, which depends indirectly from claim 1, and unpersuasive as to
claim 11, which depends indirectly from claim 8. Accordingly, the
obviousness rejection of claim 4 is reversed and the obviousness rejection of
claim 11 is affirmed.
SUMMARY
The anticipation rejection of claims 1-3 and 5-7 is reversed.
The anticipation rejection of claims 8-10 and 12-14 are affirmed.
The obviousness rejection of claim 4 is reversed.
The obviousness rejection of claim 11 is affirmed.
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TIME PERIOD
No time period for taking any subsequent action in connection with this
appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 )(iv).
AFFIRMED-IN-PART
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