Meters Music Ltd.

Patent Trials and Appeals Board

Mar 7, 2022

2022000697 (P.T.A.B. Mar. 7, 2022)

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. 16/247,632 01/15/2019 Mark Gooday 008605.00025 8694 71822 7590 03/07/2022 BANNER & WITCOFF, LTD 1100 13th Street NW Suite 1200 Washington, DC 20005 EXAMINER GAUTHIER, GERALD ART UNIT PAPER NUMBER 2653 NOTIFICATION DATE DELIVERY MODE 03/07/2022 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): PTO-71822@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MARK GOODAY ____________________ Appeal 2022-000697 Application 16/247,632 Technology Center 2600 ____________________ Before ALLEN R. MACDONALD, CAROLYN D. THOMAS and JASON V. MORGAN, Administrative Patent Judges. MacDONALD, 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 1-14. Appeal Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). 2 We affirm. 1 Appellant identifies the real party in interest is Meters Music Ltd. Appeal Br. 2. 2 Appellant has waived a hearing scheduled for March 10, 2022. Waiver of Hearing Feb. 10, 2022. Appeal 2022-000697 Application 16/247,632 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of the claimed subject matter (emphasis, formatting, and bracketed material added): 1. A headphone device, comprising: [A.] a pair of headphone cans, [i.] each headphone can comprising a generally cup-shaped can body, the can body having a concave configuration such that a cavity is defined, the cavity being enclosed by a user contacting portion, [ii.] wherein the user contacting portion is arranged in use to face internally towards the head of the user such that it presses against or sits around the ear of the user; and [B.] a connecting band for connecting the pair of headphone cans, [i.] each headphone can being mounted to an end of the connecting band such that the user contacting portion of one headphone can is facing the user contacting portion of the other headphone can, [ii.] wherein the connecting band is arranged in use to sit around the head of the user such that the headphone cans are aligned with the ears of the user, [C.] wherein at least one or more of the headphone cans comprise: [i.] a transducer for converting electrical signals to audio signals, the transducer being disposed within the cavity of the can body and arranged to face internally towards the head of the user such that in use the audio signals are directed towards the ear of the user; and [ii.] a needle based volume unit (VU) meter for providing a visual indication of a sound pressure level of the audio signal being reproduced by the transducer in the headphone can, the meter comprising a movable needle and a scale, the scale having units representative of Appeal 2022-000697 Application 16/247,632 3 sound pressure being generated by the transducer, wherein the units of the scale are volume units (VU), wherein the meter is calibrated such that the sensitivity of the moveable needle to the sound pressure being generated by the transducer corresponds to the units of the scale, and wherein the meter is arranged on the exterior of the headphone can such that it faces outwards so as to be visible to a third party other than the wearer when being worn. REFERENCES3 The Examiner relies on the following references: Name Reference Date Lintz US 2014/0112499 A1 Apr. 24, 2014 Steenkamp US 2015/0071456 A1 Mar. 12, 2015 We cite the following additional references: Name Reference Date Garner US 2005/0129259 A1 June 16, 2005 Andrea US 2007/0047740 A1 Mar. 1, 2007 PRINCIPLES OF LAW “When prima facie obviousness is established and evidence is submitted in rebuttal, the decision-maker must start over.” In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976). When an applicant timely submits evidence traversing a rejection, the examiner must reconsider the patentability of the claimed invention. The ultimate determination of patentability must be based on consideration of the entire record, by a preponderance of evidence, with due consideration to the persuasiveness of any arguments and any secondary evidence. In 3 All reference citations are to the first named inventor only. Appeal 2022-000697 Application 16/247,632 4 re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992). . . . Facts established by rebuttal evidence must be evaluated along with the facts on which the conclusion of a prima facie case was reached, not against the conclusion itself. MPEP § 716.01(d). For objective [evidence of secondary considerations] to be accorded substantial weight, its proponent must establish a nexus between the evidence and the merits of the claimed invention. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995) (emphasis added). [T]here is a presumption of nexus for objective considerations when [it is shown] that the asserted objective evidence is tied to a specific product and that product “is the invention disclosed and claimed in the patent.” . . . The presumption of nexus is rebuttable[.] WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1329 (Fed. Cir. 2016). Where the offered secondary consideration actually results from something other than what is both claimed and novel in the claim, there is no nexus to the merits of the claimed invention. Tokai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1369 (Fed. Cir. 2011) (“If commercial success is due to an element in the prior art, no nexus exists.”); Ormco Corp.[ v. Align Technology, Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006)] (“[I]f the feature that creates the commercial success was known in the prior art, the success is not pertinent.”). In re Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (emphasis added). Evidence that the industry praised a claimed invention or a product which embodies the patent claims weighs against an assertion that the same claim would have been obvious. Industry participants, especially competitors, are not likely to praise an obvious advance over the known art. Thus, if there is evidence of industry praise in the record, it weighs in favor of the nonobviousness of the claimed invention. See, e.g., Institut Pasteur & Universite Pierre Et Marie Curie v. Focarino, 738 Appeal 2022-000697 Application 16/247,632 5 F.3d 1337, 1347 (Fed. Cir. 2013) (“[I]ndustry praise . . . provides probative and cogent evidence that one of ordinary skill in the art would not have reasonably expected [the claimed invention].”). WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1334 (Fed. Cir. 2016) (emphasis added). Establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The relevance of long-felt need and the failure of others to the issue of obviousness depends on several factors. First, the need must have been a persistent one that was recognized by those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539, 152 USPQ 602, 605 (CCPA 1967) (“Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware.”); Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983) (Although the claimed invention achieved the desirable result of reducing inventories, there was no evidence of any prior unsuccessful attempts to do so.). MPEP § 716.04 I (emphasis added). Evidence of industry skepticism weighs in favor of non- obviousness. If industry participants or skilled artisans are skeptical about whether or how a problem could be solved or the workability of the claimed solution, it favors non-obviousness. Doubt or disbelief by skilled artisans regarding the likely success of a combination or solution weighs against the notion that one would combine elements in references to achieve the claimed invention. See, e.g., Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d 720, 726 (Fed. Cir. 1990) (“[The infringer’s] skepticism is relevant and persuasive evidence of the nonobviousness of [the] invention.”); Envtl. Designs, Inc. v. Union Oil Co., 713 F.2d 693, 697-98 (Fed. Cir. 1983) (“Before learning of the [claimed] Appeal 2022-000697 Application 16/247,632 6 process, and with knowledge of earlier failed efforts, both [parties’ experts] stated unequivocally that they believed the [claimed process] would not adequately solve the problem. Expressions of disbelief by experts constitute strong evidence of nonobviousness.” (citing United States v. Adams, 383 U.S. 39, 52, 86 S.Ct. 708, 15 L. Ed. 2d 572 (1966))). WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1335 (Fed. Cir. 2016) (emphasis added). REJECTION The Examiner rejects claims 1-14, under 35 U.S.C. § 103 as being unpatentable over the combination of Steenkamp and Lintz. Final Act. 2; Non-Final Act. 3-11.4 4 We note that the prosecution record of Steenkamp includes a citation by the Examiner to Andrea, US 2007/0047740 A1, published March 1, 2007. Steenkamp, List of References Cited (June 18, 2015). Andrea discloses “bud headphones configured to output an audio signal, a plurality of light emitting diodes (LEDs) operably attached to each ear bud headphone and configured to operate as a function of a volume and a rhythm of the audio signal” (¶ 7) to solve a problem of “those about the user of a conventional headset can not determine if the user is currently listening to an audio signal just from looking at the user” (¶ 6). Andrea paragraph 11 discloses: In some embodiments, the configuration and shape of the LEDs on the at least one headphone forms an illumination pattern. The illumination pattern may form, in essence, a volume meter that is visible to a third-party observer. We further note that the prosecution record of Andrea includes a citation by the Examiner to Garner, US 2005/0129259 A1, published June 16, 2005. Andrea, List of References Cited (July 30, 2007). Garner paragraph 19 discloses: In order to accomplish these and other objects of the invention, a telephone headset having an in-use indicator is provided that illuminates a strategically placed light emitting Appeal 2022-000697 Application 16/247,632 7 OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief arguments. In the present appeal, Appellant does not dispute the prima facie case. Rather, Appellant states “this appeal presents a single issue for consideration by the Board: whether Appellant’s [Declaration] demonstrates sufficient secondary considerations of nonobviousness (namely, commercial success) to rebut the rejection of the claims under 35 U.S.C. § 103.” Appeal Br. 4. We highlight the following points. A. Secondary Considerations Appellant declares: I further understand that objective evidence relevant to the issue of obviousness may also be evaluated by Office personnel and that such evidence is referred to as evidence of secondary considerations of nonobviousness, which may include evidence of commercial success, industry praise, long-felt need or availability, unnecessarily adding complexity to an otherwise simple design, recognition of a not obvious problem, and industry skepticism. 37 C.F.R. § 1.132 Declaration ¶ 5. Appellant argues that “the Examiner overlooks and does not give proper weight to Appellant’s Declaration.” Appeal Br. 5. Also, Appellant argues: device to advise others when the headset is in use. . . . A modulating circuit can be used to activate different LEDs based on the detected volume of incoming and outgoing sound. Appeal 2022-000697 Application 16/247,632 8 [E]ach paragraph of the Declaration must be addressed or otherwise shown to be immaterial or insufficient. This the Office has not done. The portions of the Declaration not addressed by the Office stand unrebutted, and provide ample evidence of secondary considerations to overcome the rejections at hand. Appeal Br. 7-8. As Appellant requests, we consider Appellant’s entire § 1.132 Declaration along with the facts on which the Examiner’s conclusion of a prima facie case was reached. Appellant declares: The Meters OV-1 Headphones features . . . fully- functioning VU meters placed on the exterior of the headphones. The VU meters react in real-time to the sound level of the music being played into the user’s ear. . . . The VU meters allow, for example, parents to monitor the loudness of the music their children are playing. 37 C.F.R. § 1.132 Declaration ¶ 8. We determine that Appellant’s Declaration involves a specific product (the “Meters OV-1 Headphones”) and that product is the invention disclosed and claimed in the patent. Based thereon, we conclude that a presumption of nexus exists. B. Commercial Success Appellant declares: 9. The Meters OV-1 Headphones were an immediate commercial success. Meters Music Ltd. continues to sell the Meters OV-1 Headphones, which continue to enjoy significant commercial success. The Meters OV-1 Headphones are currently sold out on Meters Music’s website. 10. The commercial success of the Meters OV-1 Headphones is evidenced by the myriad accolades Meters Music Ltd. has received since the Meters OV-1 Headphones launched. Below are some examples of these accolades. Appeal 2022-000697 Application 16/247,632 9 [paragraphs 10.a.-10.o. are not reproduced, but are discussed infra ] 11. The Meters OV-1 Headphones features a needle-based VU meter displaying a visual indication that is representative of the signal level of the audio signal being reproduced by the headphones, wherein the meter is calibrated such that the needle is sensitive to the sound pressure level of audio being reproduced by the transducer (i.e., speaker) in the headphones. In other words, the VU meter indicates the loudness of the actual sounds that is being delivered to the user’s ear, not a level of the electronic signal causing the sound to be reproduced. The commercial success of the Meters OV-1 Headphones is a direct result of the addition of the VU meter on the exterior of the headphones, as evidenced by the above reviews. Such feature advantageously allows a third party, like a parent or sound technician, to monitor the sound levels that the user is actually hearing without the user taking off the headphones. These features, coupled with other features recited in the claims of the present application, e.g., noise cancellation circuitry arranged to operate in dependence on the external signal, combine to form a headphone that is unique to the headphone market. 37 C.F.R. § 1.132 Declaration ¶¶ 9-11 (emphasis added). First, we agree with the Examiner that: The appellant submits statements, to support the commercial success, on pages 1-11 of the affidavit of declaration, but fails to submit hard evidence and facts of proof of establishing an evidence of commercial success. The burden of proof, hard evidence or facts and commercial success, are not present on the exhibits A-P on [Declaration] pages 12-95 neither. All the exhibits are merely show[ing] pictures of the headphones and reviews of the claimed device. Therefore, the submitted affidavit fails to provide that the Meters OV-1 on the headphone had a commercial success according to 37 CFR 1.132. Appeal 2022-000697 Application 16/247,632 10 Ans. 13. We also, agree with the Examiner that “none of the exhibits shows evidence or facts to support a commercial success, if there is one, being linked to the inventive concept of using an analog audio meter in the headphone.” Id. (emphasis added). Second, although there is a presumption of nexus, our review finds that this presumption is rebutted by the facts upon which the conclusion of a prima facie case was reached. The prior art Steenkamp headphone includes the elements which Appellant asserts as the basis for commercial success. Specifically, Steenkamp discloses an LED based VU meter sensitive to the sound pressure level of audio that indicates the loudness of the actual sounds (¶ 16 “The synchronization of the LEDs in the predetermined spaces forms a volume meter”; ¶ 4 “volume is referred to as the loudness of the sound”), where the VU meter is on the exterior of the headphones (¶ 35 “a volume meter that is visible from an external surface of the at least one headphone 102”; FIG. 4), and allowing a third party to monitor the sound levels that the user is actually hearing without the user taking off the headphones (¶ 8 “indicating to . . . an observer the status of an audio signal, including, power, volume, rhythm, and intensity”; ¶ 11 “a volume meter that is visible to a third-party observer”). As Appellant’s asserted commercial success is due to elements shown to be in the prior art Steenkamp headphone device, no nexus exists. Third, Appellant’s Declaration at paragraphs 10.a., 10.d., 10.e., and 10.j., points out that Exhibits A, D, E, and J each note the needle-based VU meter of the Meters OV-1 headphones. Our review finds that Exhibits B and P also make note of the analog needle-based VU meter. However, none of Appeal 2022-000697 Application 16/247,632 11 these six Exhibits point to any functionality of the analog needle-based VU meter (as opposed to the LED-based volume meter of Steenkamp) as driving commercial success. At best, these Exhibits speak to the aesthetics of the needle-based VU meter as “cool,” “looks absolutely fantastic,” and “retro appeal” (Exhibit A); “unique style” and “old-timey analog type memorabilia, it’s pretty neat” (Exhibit B); “looks high-tech” (Exhibit D); “a fashion statement” (Exhibit E); “cool VU meter” (Exhibit J);and “cool looking VU meters” (Exhibit P). Further, Appellant’s Declaration at paragraphs 10.c., 10.h., 10.m., and 10.o., points out that Exhibits C, H, M, and O, each provide praise of the aesthetics of the Meters OV-1 headphones. Our review finds that Exhibits F, I, and J, also provide similar praise of the aesthetics. However, again none of these seven Exhibits point to any functionality of the claimed headphones (as opposed to the Steenkamp headphones) as driving commercial success. Rather, as supra, at best these Exhibits speak to the aesthetics of the headphones as “extraordinary looking,” “unparalleled aesthetic appeal,” and “superb looking” (Exhibit C); “design with a dash of studio cool,” (Exhibit F); “cool” (Exhibit H); “looks set to tickle” (Exhibit I); “aesthetically, they are pleasing.” (Exhibit J); “cool” (Exhibit M); and “that bit of design flare” (Exhibit O). We find nothing in the Declaration and Exhibits showing that the purportedly improved aesthetics improve any functionality. Cf., e.g., Ex Parte Frank Venegas, Jr., 2009 WL 1689320, at *6 (BPAI 2009) (nonprecedential) (noting that the “addition of stanchion or post covers customized with logos or advertisements is known in the art to increase Appeal 2022-000697 Application 16/247,632 12 aesthetics and thus, visibility”). Aesthetic distinctness without more is a subjective consideration that has no place in the objective tests for obviousness. See, e.g., Pope v. Illinois, 481 U.S. 497, 504-05 (1987) (Scalia, J., concurring) (regarding the difficulty of fitting an aesthetic test within an objective test). We conclude that the submitted evidence is entitled to little probative weight as a showing of commercial success. C. Industry Praise Also, Appellant declares: 12. The Meters OV-1 Headphones has received praise and industry acceptance. The industry specifically praises the Meters OV-1 Headphones for its addition of the VU meters placed on the exterior of the cans. As noted in the review above (Exhibit A) “Yes, you really will want a pair of headphones with an active VU meter in each cup. Why? Because it's just so damn cool.” Another review states (Exhibit B) “I think [the VU meter is] pretty unique and sets the Meters OV-1B headphones apart from the competition.” 37 C.F.R. § 1.132 Declaration ¶ 12 (emphasis added). As we note supra in section B (commercial success), to the extent that these Exhibits speak to technology elements of Appellant’s headphones, the prior art Steenkamp headphone includes those elements, and similar to commercial success, we treat praise due to elements also in the prior art Steenkamp headphone as having no nexus to the merits of the claimed invention. Further, to the extent that these Exhibits speak to the aesthetics of Appellant’s headphones, such is given little weight. Additionally, these Exhibits are not “industry praise,” such as industry participants, especially competitors. Rather, the Exhibits are popular press product reviews which Appeal 2022-000697 Application 16/247,632 13 do not evince any meaningful analysis of the claimed invention. Contrast the basic product reviews of the Declaration’s Exhibits to praise of the iPhone touch screen by feature articles in major business publications, i.e., Time Magazine and Bloomberg Businessweek. Apple Inc. v. Int’l Trade Comm’n, 725 F.3d 1356, 1366 (Fed. Cir. 2013). We conclude that the submitted evidence is entitled to little probative weight as a showing of industry praise. D. Long-felt Need Further, Appellant declares 13. To my understanding, there are no headphones on the market with a functioning VU meter positioned on the exterior of the headphones, or at a minimum there were none at the time the present application was filed. 14. Despite being the first invention for headphones that include an analog VU meter, the technological components for creating such an invention have been known for some time. However, despite the component parts of the technology being known for quite some time, no one else thought to create a headphone like the claimed invention. Indeed, as noted in the review above (Exhibit B) “The VU meter . . . has been a staple in many studios since the early years of recorded music,” yet no one else thought to include a VU meter on headphones until my invention. 15. The VU meter itself was developed prior to 1942, when the Acoustical Society of America standardized its loudness scale. The fundamental design of a VU is fairly simple, and they are thus inexpensive to implement in professional as well as consumer audio equipment. However, despite their widespread availability and inexpensive circuitry, no one ever even attempted to put an analog VU meter in headphones for over 65 years after their standardization in the industry, when we did it for the first time. Appeal 2022-000697 Application 16/247,632 14 37 C.F.R. § 1.132 Declaration ¶¶ 13-15 (emphasis added). Our review of Appellant’s Declaration and its Exhibits finds no evidence of (1) an art recognized problem existed in the art for a long period of time without solution or (2) failure of others skilled in the art who unsuccessfully attempted to solve the problem. We conclude that the submitted evidence is entitled to little probative weight as a showing of long-felt need. E. Unnecessary Complexity Furthermore, Appellant declares: 16. When developing the Meters OV-1 headphones including the VU meter, it was at that time countertintuitive to include a VU meter on the exterior of the can of the headphones themselves. First, the wearer of the headphones cannot themselves see the VU meter to read the output. As such, including a VU meter adds otherwise unnecessary complexity. 37 C.F.R. § 1.132 Declaration ¶ 16 (emphasis added). To the extent that paragraph 16 of the Declaration speak to technology elements of Appellant’s headphones, the prior art Steenkamp headphone includes those elements which Appellant asserts are counterintuitive. Therefore, the Steenkamp reference contradicts Appellant’s declaration that a headphone with these elements is counterintuitive. We conclude that the submitted evidence is entitled to little probative weight as a showing of unnecessary complexity. F. Recognition of Problem Also further, Appellant declares: 17. To my knowledge, no one in the industry recognized the problem that a third party may want to monitor the volume level of the user without disturbing or distracting the user. I Appeal 2022-000697 Application 16/247,632 15 recognized this problem and developed the Meters OV-1 Headphones to solve this problem. The Meters OV-1 Headphones provides an easier and more accessible way for third parties to monitor the sounds levels of the user by placing the VU meter on the exterior of the cans. 37 C.F.R. § 1.132 Declaration ¶ 17 (emphasis added). To the extent that paragraph 17 of the Declaration speak to the problem of “a third party may want to monitor the volume level of the user without disturbing or distracting the user,” the prior art Steenkamp reference recognized this problem: [T]hird-party observers cannot determine if a user wearing a headset is listening to an audio signal or if the headset is silent. This is because the sound emitting from the headphones is indiscernible by the observer. Steenkamp ¶ 5. The Steenkamp headphone includes elements (“a volume meter which is visible to a third-party observer” Steenkamp ¶ 11) which solved the problem Appellant asserts no one in the industry recognized. Therefore, the Steenkamp reference contradicts Appellant’s declaration that no one in the industry recognized the problem. We conclude that the submitted evidence is entitled to little probative weight as a showing of recognition of the problem. G. Industry Skepticism Also furthermore, Appellant declares: 18. Industry experts expressed skepticism about the addition of the VU meter on the exterior of the can. Below are some examples of this skepticism: a. As noted in Exhibit L, “a VU meter mounted on the side of headphones serves no discernable purpose other than to make them look different. You can’t see it while wearing them, and even if you could, it measures the Appeal 2022-000697 Application 16/247,632 16 volume of your music source, not the loudness of the headphones themselves.” b. Attached as Exhibit P is TravAndAlex’s review of the Meters OV-1 Headphones on www.head-fi.org. TravAndAlex writes, “The audiophile responses [to the VU meter] seem to range from skeptical to disdainful and overall this demographic regard the meters as a pointless gimmick.” Nonetheless, the Meters OV-1 Headphones have been a raging commercial success. 37 C.F.R. § 1.132 Declaration ¶ 18 (emphasis added). As we have already determined, the Exhibits A and B are not “industry praise.” Similarly, the Exhibits L and P are not “industry skepticism.” Rather, the Exhibits are popular press product reviews which do not evidence any industry-based technological analysis of the claimed invention. Also, as we have already determined Exhibits L and P are directed to the aesthetics of the Meters OV-1 headphones. As with praise of aesthetics, skepticism of aesthetics is entitled to little weight. We conclude that the submitted evidence is entitled to little probative weight as a showing of industry skepticism. H. Conclusion The objective considerations in this case, commercial success, industry praise, long-felt need, industry skepticism, etc., provide little weigh in favor of a conclusion that needle based volume meter arranged on the exterior of headphones would not have been obvious to one of skill in the art at the relevant time. When these considerations are evaluated along with the facts upon which the conclusion of a prima facie case was reached (Steenkamp discloses an LED-based volume meter arranged on the exterior of headphones (Non-final Act. 4) and Lintz teaches that analog volume Appeal 2022-000697 Application 16/247,632 17 meters and LED meters are known alternatives (Non-final Act. 4-5)), we reach an ultimate determination that “the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.” 35 U.S.C. § 103. We concur with the Examiner’s ultimate conclusion that claims 1-14 are not patentable. CONCLUSION The Examiner did not err in rejecting claims 1-14 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejection of claims 1-14 as being unpatentable under 35 U.S.C. § 103 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-14 103 Steenkamp, Lintz 1-14 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED