SIVANTOS PTE. LTD.

Patent Trials and Appeals Board

Oct 23, 2020

2020000155 (P.T.A.B. Oct. 23, 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.
15/870,115 01/12/2018 THOMAS PILGRIM 2011P14910C 7054
24131 7590 10/23/2020
LERNER GREENBERG STEMER LLP
P O BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
NGUYEN, DUC MINH
ART UNIT PAPER NUMBER
2651
NOTIFICATION DATE DELIVERY MODE
10/23/2020 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):
docket@patentusa.com
office@patentusa.com
vrahimis@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS PILGRIM and HENNING PUDER
Appeal 2020-000155
Application 15/870,115
Technology Center 2600

Before BRADLEY W. BAUMEISTER, GREGG I. ANDERSON, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, 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 1–8, 13, and 14.2 We have jurisdiction
under 35 U.S.C. § 6(b). Oral arguments were heard on October 15, 2020. A
transcript of that hearing will be added to the record in due time.
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Sivantos Pte. Ltd. as the real party
in interest. Appeal Br. 1.
2 Appellant cancelled claims 9 and 12. Appeal Br. 4.
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Application 15/870,115

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CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to reducing intrinsic noise
from a microphone of a hearing aid. Spec. ¶¶ 7, 8.3
Claims 1 and 14 are independent. Independent claim 1, reproduced
below with certain limitations at issue italicized, illustrates the claimed
subject matter:
1. A method for reducing inherent microphone noise
generated independently of ambient noise in an input signal of a
hearing apparatus, which comprises the steps of:
filtering the input signal, received by a microphone of the
hearing apparatus, via a Wiener filter if a noise power
determined for the input signal is smaller than a predetermined
limit value for assisting in reducing the inherent microphone
noise;
and
deactivating the Wiener filter if the noise power is
greater than the predetermined limit value or equal to the
predetermined limit value for assisting in reducing the inherent
microphone noise.
Appeal Br. 16 (Claims Appendix).

3 Throughout this Decision we refer to: (1) Appellant’s Specification filed
January 12, 2018 (“Spec.”); (2) the Non-Final Office Action (“Non-Final
Act.”) mailed November 9, 2018; (3) the Appeal Brief filed April 8, 2019
(“Appeal Br.”); (4) the Examiner’s Answer (“Ans.”) mailed June 25, 2019;
and (5) the Reply Brief filed August 26, 2019 (“Reply Br.”).
Appeal 2020-000155
Application 15/870,115

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REFERENCES
The references4 relied upon by the Examiner are:
Name Reference Date
Janse US 5,610,991 Mar. 11, 1997
Hietanen et al. US 6,178,249 B1 Jan. 23, 2001
Mekuria et al. US 6,230,123 B1 May 8, 2001
Astorino et al. US 7,106,866 B2 Sept. 12, 2006
Stephelbauer et al. US 2006/0202751 A1 Sept. 14, 2006
Gemello et al. US 2007/0260454 A1 Nov. 8, 2007
Kwak et al. US 2008/0065380 A1 Mar. 13, 2008
Haila et al. US 2009/0316916 A1 Dec. 24, 2009
Nicholson US 2011/0299695 A1 Dec. 8, 2011
REJECTIONS5
The Examiner rejects claims 1 and 14 under 35 U.S.C. § 103 as
unpatentable over Hietanen, Astorino, and Kwak. Non-Final Act. 7–11.
The Examiner rejects claims 2 and 5 under 35 U.S.C. § 103 as
unpatentable over Hietanen, Astorino, Kwak, and Janse. Id. at 12.
The Examiner rejects claim 3 under 35 U.S.C. § 103 as unpatentable
over Hietanen, Astorino, Kwak, Janse, and Nicholson. Id. at 12–13.
The Examiner rejects claim 4 under 35 U.S.C. § 103 as unpatentable
over Hietanen, Astorino, Kwak, and Gemello. Id. at 13–14.
The Examiner rejects claims 6 and 7 under 35 U.S.C. § 103 as
unpatentable over Hietanen, Astorino, Kwak, and Haila. Id. at 14.

4 All citations to the references use the first-named inventor or author only.
5 The Examiner initially also rejected claims 1–15 based on statutory type
(35 U.S.C. § 101) double patenting over US 9,913,051 B2. Non-Final
Act. 2–7; Ans. 19–21. But, the Examiner subsequently withdrew that
rejection in a paper mailed September 13, 2019.
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Application 15/870,115

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The Examiner rejects claim 8 under 35 U.S.C. § 103 as unpatentable
over Hietanen, Astorino, Kwak, and Mekuria. Id. at 14–16.
The Examiner rejects claim 13 under 35 U.S.C. § 103 as unpatentable
over Hietanen, Astorino, Kwak, and Stephelbauer. Id. at 16.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv)(2018).
Claim 1 recites, in part, “deactivating the Wiener filter if the noise
power is greater than the predetermined limit value or equal to the
predetermined limit value for assisting in reducing the inherent microphone
noise.” Claims App’x. 16. The Examiner notes that Hietanen does not teach
or suggest “assisting in reducing the inherent microphone noise.” Non-Final
Act. 8. But, the Examiner finds Astorino teaches or suggests “a method for
reducing inherent noise generated independently of ambient noise in an
input signal . . . and deactivating a filter if the noise power determined at the
input signal is greater than a predetermined limit value.” Id. at 10. The
Examiner relies on Kwak to teach “that filtering noise ‘via a Wiener filter’ is
known.” Id. The Examiner determines that sufficient motivation existed to
combine the teachings of the references. Id.
Astorino relates to reducing noise created by an engine noise
attenuation system. In Astorino, “if engine noise is low relative to
background sound, the noise attenuation system is susceptible to the creation
of an unwanted high pitch sound” that can be perceived by a passenger over
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Application 15/870,115

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the low engine noise. Astorino 1:59–62. “In this situation, the invention
temporarily disables the [noise attenuation] system to avoid the generation
of this sound.” Id. at 1:62–63.
Appellant argues Astorino does not teach the limitation at issue
because “the Astorino reference teaches deactivating the noise cancellation
if the noise level of the sound to be attenuated (engine sound) is low or if a
relationship between the noise level of the engine noise and a background
noise level . . . is low.” Appeal Br. 10. Of particular relevance, Appellant
argues that the teachings of Astorino are the opposite of the limitation at
issue in claim 1:
Astorino’s teaching is directed to avoid high pitch noises that are
generated by the noise cancelling in the case when engine load is
low (and thus, engine noise is low; cf. Astorino: col. 1, ll. 36–
40). As long as engine noise is high (or high relative to
background sounds, i.e. a signal to noise ratio is high and above
a threshold) the noise cancellation of Astorino has to be active
(s. Astorino: col. 3, ll. 36–42). Those teachings of Astorino are
the exact opposite of the invention recited in claim 1. In
particular, Appellants’ claim 1 requires deactivating the Wiener
filter if the noise power (determined for the input signal) is
greater than a predetermined value, and to have it running as
long as the noise power is below that predetermined value.
Id.
Appellant’s argument is persuasive. We agree with Appellant that
Astorino discloses temporarily disabling engine noise attenuation if the
engine noise is low relative to background sound. Astorino 1:58–63.
In response to Appellant’s arguments, the Examiner finds that
“Astorino taught that if the unwanted noise (inherent engine noise) is low
relative to the background noise/sound . . . then Astorino’s noise attenuation
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Application 15/870,115

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system is disabled in order to prevent creation of unwanted high pitched
noise/sound.” Ans. 28. The Examiner, however, does not explain
sufficiently how Astorino’s disabling of engine noise attenuation when the
noise is lower than a threshold teaches or suggests “deactivating the Wiener
filter if the noise power is greater than the predetermined limit value,” as
recited in claim 1. Claims App’x. 16 (emphasis added).
Said a different way, given the record before us, the basis for the
rejection is unclear because Astorino teaches activating, rather than
deactivating, the noise attenuation system when the engine noise is greater
than a threshold. Astorino 3:14–44. Astorino’s noise attenuation is
activated, not only to cancel the high volume of the engine noise, but also
because the high-pitched whine of the noise attenuation system can no
longer be perceived by passengers due to the higher level of input noise. Id.
The Examiner relies on Kwak to teach that “filtering noise ‘via a
Wiener filter’ is known.” Non-Final Act. 10. We, therefore, agree with
Appellant that the Examiner does not show that Kwak “cure[s] the above-
discussed deficiencies” of Hietanen and Astorino.
Accordingly, we find persuasive Appellant’s argument that the
Examiner has not demonstrated sufficiently that the combination of
Hietanen, Astorino, and Kwak teaches or suggests “deactivating the Wiener
filter if the noise power is greater than the predetermined limit value or equal
to the predetermined limit value for assisting in reducing the inherent
microphone noise,” as recited in independent claim 1 and as similarly recited
in independent claim 14.
Because we agree with at least one of the dispositive arguments
advanced by Appellant, we need not reach the merits of Appellant’s other
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arguments. Consequently, based on the record before us, we do not sustain
the Examiner’s 35 U.S.C. § 103 rejection of independent claims 1 and 14.
With respect to the remaining obviousness rejections of dependent
claims 2–8 and 13, the Examiner does not rely on the additionally cited
references, Janse, Nicholson, Gemello, Haila, Mekuria, and Stephelbauer, to
cure the deficiency noted for claim 1. Accordingly, we do not sustain these
obviousness rejections for the reasons set forth above for claim 1.
CONCLUSION
We reverse the Examiner’s rejections of claims 1–8, 13, and 14 under
35 U.S.C. § 103.
Appeal 2020-000155
Application 15/870,115

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DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 14 103 Hietanen, Astorino,
Kwak
1, 14
2, 5 103 Hietanen, Astorino,
Kwak, Janse
2, 5
3 Hietanen, Astorino,
Kwak, Janse, Nicholson
3
4 Hietanen, Astorino,
Kwak, Gemello
4
6, 7 Hietanen, Astorino,
Kwak, Haila
6, 7
8 Hietanen, Astorino,
Kwak, Mekuria
8
13 Hietanen, Astorino,
Kwak, Stephelbauer
13
Overall
Outcome
1–8, 13,
14

REVERSED