Ex Parte Smith et al

Patent Trial and Appeal Board

May 27, 2016

12361508 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/361,508 01/28/2009
7590 05/27/2016
Kevin Semcken
Able Planet, Inc.
10601 W I-70 Frontage Road North
Wheat Ridge, CO 80033
FIRST NAMED INVENTOR
Desmond Arthur Smith
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.
ABLE0009US 8396
EXAMINER
SAINT CYR, LEONARD
ART UNIT PAPER NUMBER
2658
MAILDATE DELIVERY MODE
05/27/2016 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
Ex parte DESMOND ARTHUR SMITH and H. CHRISTOPHER H.
SCHWEITZER
Appeal2014-006685
Application 12/361,508
Technology Center 2600
Before HUNG H. BUI, ADAM J. PYONIN, and MICHAEL M. BARRY,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-9. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM. 2
1 According to Appellants, the real party in interest is Able Planet Inc. App.
Br. 1.
2 Our Decision refers to Appellants' Appeal Brief filed Dec. 18, 2013
("App. Br."); Examiner's Answer mailed March 18, 2014 ("Ans."); Final
Office Action mailed July 18, 2013 ("Final Act."); and original Specification
filed Jan. 28, 2009 ("Spec.").
Appeal2014-006685
Application 12/361,508
STATEMENT OF THE CASE
Appellants 'Invention
Appellants' invention is directed to a method for enhancing audio by
selectively amplifying certain portions of the audio while lowering other
portions of the audio. Spec i-f 2. When applied to human speech, such a
method, according to Appellants, would enhance the volume of softer
sounding consonants while retaining or lowering the volume of louder
sounding vowels. Abstract.
Claims on Appeal
Claims 1-9 are pending. Claim 1 is independent and is illustrative of
the invention, as reproduced below with disputed limitations emphasized:
1. A method for improving the clarity of acoustic
speech signals, comprising:
continuously measuring the average level of an input
signal;
applying at least one gain value to the speech signal by a
predetermined factor; and
simultaneously clipping the peak values of the input
speech signal by a precalculated amount, whereby the soft high
frequency unvoiced spoken components are perceptually
enhanced and whereby the averaged spectrum is flattened
without the undesired consequence of biasing the frequency
response by filtering the low frequency region. 3
3 While no 35 U.S.C. § 112(b) rejection is found in the record, we note that
claim 1 includes several indefinite terms, i.e. "the soft high frequency
unvoiced components", ''perceptually enhanced'', "the undesired
consequence", and "the low frequency region." These terms are either
relative in degree or subjective in nature. Also noted are potential
antecedent basis issues with several terms such as "the average level", "the
peak values", "the soft high frequency unvoiced spoken components", and
(Footnote continued on next page.)
2
Appeal2014-006685
Application 12/361,508
App. Br. 5 (Claims App'x.) (disputed limitations in italics).
Suzuki
Bizjak
Evidence Considered
us 5,719,716
US 2002/0172378 Al
Examiner's Rejection
Feb. 17, 1998
Nov. 21, 2002
Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bizjak and Suzuki. Final Act. 2-7.
ISSUE
Based on Appellants' arguments, the dispositive issue on appeal is
whether the Examiner's combination of prior art references teaches or
suggests all the limitations of claim 1 including: "whereby the averaged
spectrum is flattened without the undesired consequence of biasing the
frequency response by filtering the lo\v frequency region." i\.pp. Br. 2-3.
ANALYSIS
With respect to independent claim 1, the Examiner finds Bizjak
teaches Appellants' method including all limitations, except for the
"whereby the averaged spectrum is flattened without the undesired
consequence of biasing the frequency response by filtering the low
frequency region." Final Act. 2-3 (citing Bizjak Abstract; iii! 51, 292-94,
"the average spectrum." In the event of further prosecution, the Examiner is
invited to consider rejecting claims 1-9 under 35 U.S.C. § 112(b ).
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Appeal2014-006685
Application 12/361,508
324--25, 380; Fig. 40C). The Examiner relies on Suzuki as teaching the
missing whereby clause in order to support the conclusion of obviousness.
Id. at 3 (citing Suzuki 2:10-15).
Appellants do not dispute the Examiner's rationale for making the
combination. Rather, Appellants argue Suzuki does not teach or suggest "the
low frequency spectrum flattening taught and shown in FIG. 8 of the present
application." App. Br. 3. According to Appellants, Suzuki only discloses
"an extreme high frequency boost due to the operation of the automatic bias
control thereof, and the lower frequencies are completely unaffected." Id.
(emphasis added). In other words, Appellants contend the flattening
disclosed by Suzuki operates at a high frequency range and whereas
Appellants' claimed spectrum flattening operates at both low and high
frequency range. Id.
We do not find Appellants' arguments persuasive. Rather, we find the
Examiner has provided a comprehensive response to Appellants' arguments
supported by a preponderance of evidence. Ans. 7-8; see also Final Act. 2-
3. As such, we adopt the Examiner's findings and explanations provided
therein. Id. As correctly noted by the Examiner, Suzuki also teaches
flattening at "the middle and low frequency range." See Suzuki 2: 10-15,
3:19-21, 4:12-14. In addition, we note that claim terms are given their
broadest reasonable interpretation consistent with the specification. In re
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004).
Appellants' claim 1 recites "whereby the average spectrum is flattened" and
without specifying which or how the frequencies are flattened. Appellants'
argument with respect to Figure 8 is inapposite to the scope of claim 1 vis-a-
vis the cited references. See App. Br. 3.
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Appeal2014-006685
Application 12/361,508
Moreover, "[a]n intended use or purpose usually will not limit the
scope of the claim because such statements usually do no more than define a
context in which the invention operates." Boehringer Ingelheim Vetmedica,
Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003).
Although "[s]uch statements often ... appear in the claim's preamble," In re
Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987), a statement of intended use or
purpose can appear elsewhere in a claim. Id.
Here, the phrase "without the undesired consequence of biasing the
frequency response by filtering the low frequency region" merely states an
intended result of previously recited requirements for spectrum flattening.
See Spec. i-f 26 and Minton v. Nat 'l Ass 'n of Secs. Dealers, 336 F.3d 1373,
1381 (Fed. Cir. 2003) (language in a whereby clause in a method claim "is
not given weight when it simply expresses the intended result of a process
step"). Consequently, the phrase will not limit the scope of the claim and
will not distinguish the claimed invention from the prior art in terms of
patentability.
For the reasons set forth above, Appellants have not persuaded us of
Examiner error. Accordingly, we sustain the Examiner's rejection of claim 1
and its dependent claims 2-9 which Appellants do not argue separately.
App. Br. 4.
CONCLUSION
On the record before us, we conclude that the Examiner has not erred
in rejecting claims 1-9 under 35 U.S.C. § 103(a).
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Appeal2014-006685
Application 12/361,508
DECISION
As such, we AFFIRM the Examiner's final rejection of claims 1-9.
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
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