Filiep Vanpoucke

Patent Trials and Appeals Board

Aug 14, 2020

14542301 - (D) (P.T.A.B. Aug. 14, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/542,301 11/14/2014 Filiep Vanpoucke CID02034USCO1/0016USU1 4531
106936 7590 08/14/2020
Merchant & Gould Cochlear
P.O. Box 2903
Minneapolis, MN 55402
EXAMINER
LEVICKY, WILLIAM J
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
08/14/2020 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):
USPTO106936@merchantgould.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FILIEP VANPOUCKE

Appeal 2019-001370
Application 14/542,301
Technology Center 3700
____________

Before DANIEL S. SONG, MICHAEL L. HOELTER, and
BENJAMIN D. M. WOOD, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 23, and 24, which constitute all the
claims pending in this application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. We understand the real party in interest is “Cochlear
Limited.” Appeal Br. 3.
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Application 14/542,301

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CLAIMED SUBJECT MATTER
The disclosed subject matter relates to audio prostheses that “are
generally fitted to individual recipients to ensure proper functioning of the
prosthesis and to improve audio detection for the recipient.” Spec. 2.
Method claim 1 is the sole independent claim on appeal, is representative of
the claims on appeal, and is reproduced below.
1. A method for fine tuning an acoustic-to-electrical
mapping for a cochlear implant implanted in a recipient, the
method comprising:
selecting a subset of electrodes for testing, the subset
comprising one or more electrodes;
testing the one or more electrodes in the selected subset
of electrodes to produce testing results, wherein the testing
comprises an auditory stimulation;
determining a first adjustment value based on the testing
results, wherein the first adjustment value is an adjustment to a
first electrical output based upon an acoustic-to-electrical
mapping that was generated during an earlier fitting of a
cochlear implant for a recipient;
based on at least the first adjustment value, determining
an interpolated adjustment value for at least one non-tested
electrode, wherein the interpolated adjustment value is an
electrical output adjustment to a second electrical output based
upon the acoustic-to-electrical mapping that was generated
during the earlier fitting; and
adjusting the cochlear implant implanted in the recipient
using the first adjustment value and the interpolated adjustment
value, wherein the adjustment is performed after the earlier
fitting of the cochlear implant.
EVIDENCE
Name Reference Date
Faltys et al. (“Faltys”) US 6,219,580 B1 Apr. 17, 2001
Nopp et al. (“Nopp”) US 2013/0079845 A1 Mar. 28, 2013

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REJECTION2
Claims 1–7, 23, and 24 are rejected under 35 U.S.C. § 103 as
unpatentable over Nopp and Faltys.
ANALYSIS
Appellant argues all the claims (i.e., claims 1–7, 23, and 24) together,
stating “[c]laims 2–7, 23, and 24 are patentable at least based on their
dependency from independent claim 1, and for their additional recitations.”
Appeal Br. 14. We select claim 1 for review, with the remaining claims
(i.e., claims 2–7, 23, and 24) standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner relies on Nopp for disclosing the limitations of claim 1,
but acknowledges that Nopp does not disclose that the recited “first” and
“interpolated” adjustment values are an adjustment of an output “that was
generated during an earlier fitting” and that “the adjustment is performed
after the earlier fitting of the cochlear implant.” Final Act. 6. The Examiner
relies on Faltys for teaching successive fitting operations and provides a
reason for combining Nopp and Faltys. See Final Act. 6.
Appellant concurs that Faltys teaches “[t]he ‘fitting or adjusting
process will typically continue to occur at regular or as-needed
maintenance/check-up intervals after the initial fitting.’” Appeal Br. 11
(quoting Faltys 3:46–49). Appellant, however, contends that “Faltys does
not appear to disclose or suggest an adjustment value being based on an

2 The Examiner states, “the previous 101 rejection has been withdrawn.”
Final Act. 2. Also, in the first page of the Advisory Action dated June 22,
2018, the Examiner stated that Appellant has overcome the following
rejection: “112(a).”
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acoustic-to-electrical mapping that was generated during an earlier fitting of
a cochlear implant.”3 Appeal Br. 10. It should be noted that the Examiner
relies on Nopp for teaching the step of adapting an implant to the user by
employing the recited mapping process during a fitting (addressed in greater
detail below). See Final Act. 5 (referencing Nopp ¶¶ 6, 9); see also Ans. 2,
3. The Examiner relies on Faltys for teaching the continuation of Nopp’s
adjusting process at regular intervals after the initial fitting. See Final Act. 6
(referencing Faltys 3:30–55); see also Ans. 3, 4.
Appellant states, “there is no indication in the references as applied–
individually or in combination–that modifying Nopp to repeat the fitting
process would result in the recitation as claimed.” Reply Br. 3 (pagination
added with the title page being page 1); see also id. at 4. However,
Appellant does not explain how Faltys’ teaching of repeating a fitting
process, combined with Nopp’s teaching of the recited mapping process,
would fail to at least suggest the limitation in question, i.e., subsequently
adjusting values based on a mapping that was generated during an earlier
fitting of a cochlear implant.
Appellant contends, “Nopp (whether or not it is repeated) does not
disclose an ‘adjustment to a first electrical output’, let alone one ‘based upon
an acoustic-to-electrical mapping that was generated during an earlier fitting

3 Appellant thereafter supplements this assertion by addressing both “Faltys,
col. 1, lines 49–64” and also “Faltys, col. 10, lines 58.” Appeal Br. 10.
However, after the Examiner questions such citations (see Ans. 4), Appellant
acknowledges that these citations were to an incorrect Faltys reference (i.e.,
to a Faltys’ reference “previously applied but not by the instant Office
Action”). Reply Br. 4. Regardless, Appellant contends that “the substance
of the arguments of the remainder of the Appeal Brief is not affected” by
this oversight. Reply Br. 4.
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of a cochlear implant for a recipient’ as claimed.” Reply Br. 3. While Nopp
may not disclose subsequent follow-up adjustments (see Faltys), paragraph 6
of Nopp clearly teaches that “several parameters within the cochlear implant
system are set to best match the needs of the individual user” and that “this
fitting process is normally referred to as a fitting or a map.” Thereafter,
paragraph 6 discusses adjusting “the charge or stimulation level which
produces a hearing impression” “without being too loud.” Appellant does
not explain how this disclosure fails to teach the recited “adjustment to a
first electrical output” or the recited “acoustic-to-electrical mapping.”
Appellant further contends that “the applied portion of Faltys is silent
regarding how the fitting or adjusting process will ‘typically continue to
occur.’” Appeal Br. 11; Reply Br. 3. First, the Examiner explains that
Nopp, not Faltys, is relied on for teaching how the process is to occur. See
Ans. 2. Second, paragraph 6 of Nopp discloses two methodologies by which
parameters may be adjusted. Nopp discloses the use of “the Maximum
Comfortable Loudness (MCL)” process as well as the “Threshold (THR)”
process. Nopp ¶ 6. The Examiner further notes “that the Appellant in
Paragraph [0024] is using the same fitting process” to generate the map.
Ans. 2, 6. This is indeed the case because paragraph 24 of Appellant’s
Specification clearly discusses both the THR and MCL processes. As a
consequence, Appellant’s reliance on Faltys as evidence that the Examiner
erred by not addressing how the fitting or adjusting process will occur is not
persuasive and is indicative that Appellant is arguing “the references
individually,” not as a combination. Ans. 4.
Appellant also states that “repeating Nopp’s fitting process after the
initial fitting would not result in an adjustment value based on an acoustic
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mapping that was generated during an earlier fitting.” Appeal Br. 11.
However, it is not explained how a subsequent adjustment of a value arising
from Nopp’s initial mapping or fitting (see Nopp ¶ 6, see also Ans. 2) is not
an adjustment of a value generated during that earlier mapping or fitting.
Appellant further argues that “Nopp describes analyzing previously-
measured data from other patients” and does not disclose adjustment “for the
recipient.” Appeal Br. 12 (referencing Nopp ¶¶ 19–23). Indeed, paragraph
19 of Nopp discusses accessing a fit map “from fit maps of previously
measured cochlear implant patients.” However, paragraph 6, which the
Examiner referenced, clearly states that the particular implant in question is
“adapted for the individual user” and that during the fitting process “several
parameters . . . are set to best match the needs of the individual user.”
Further, Appellant does not address Faltys’ specific disclosure of a system
directed “to a patient.” Faltys 3:30–31. Accordingly, we are not persuaded
that Nopp (or Faltys) fails to disclose a procedure tailored to an individual
user.
Appellant additionally addresses the claim recitation directed to “an
interpolated adjustment,” which pertains to non-tested electrodes and their
adjustment. See Appeal Br. 13. Appellant contends that “the references as
applied do not disclose an interpolated adjustment value being based on an
acoustic-to-electrical mapping that was generated during an earlier fitting.”
Appeal Br. 13. Appellant acknowledges the Examiner’s reliance on
paragraph 9 of Nopp for such teaching, but contends that this paragraph
“does not appear [to] describe such estimating being based on an acoustic-
to-electrical mapping.” Appeal Br. 13.
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As noted above, paragraph 6 of Nopp addresses the particular
mapping process employed (same as Appellants’) while paragraph 9 of
Nopp addresses “accelerating the fitting process,” such as by “the use of
interpolation.” Paragraph 9 states that to achieve this acceleration, “channel-
specific parameters are obtained” for a sub-group of channels, “and the
parameters on the remaining channels are estimated using those obtained
parameters.” Because Nopp addresses obtaining the parameters of some, but
not all, channels via the recited mapping process, Appellant does not explain
how Nopp fails to teach the adjustment of the remaining channels via
interpolation, i.e., via the use of interpolated adjustment values. See also
Ans. 3, 5, 6.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claims 1–7, 23, and 24 as being obvious in
view of Nopp and Faltys. We sustain the Examiner’s rejection of these
claims.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 23,
24
103 Nopp, Faltys 1–7, 23,
24

No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED