Sonova AG

Patent Trials and Appeals Board

Dec 3, 2020

2019005262 (P.T.A.B. Dec. 3, 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.
14/900,311 12/21/2015 Juliane Raether TSW-55420 7734
86378 7590 12/03/2020
Pearne & Gordon LLP
1801 East 9th Street
Suite 1200
Cleveland, OH 44114-3108
EXAMINER
JOSHI, SUNITA
ART UNIT PAPER NUMBER
2651
NOTIFICATION DATE DELIVERY MODE
12/03/2020 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):
patdocket@pearne.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JULIANE RAETHER, HARALD KRUEGER,
and SIDDHARTHA JHA
____________

Appeal 2019-005262
Application 14/900,311
Technology Center 2600
____________

Before JOHN A. JEFFERY, LARRY J. HUME, and LINZY T.
McCARTNEY, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1, 4, 5, 7–13, 15, 17, 19–27, and 29. Claims 2, 3, 6,
and 18 were cancelled, and claims 14, 16, 28, and 30 are indicated as
containing allowable subject matter. See Final Act. 24. 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. Appellant identifies the real party in interest as Sonova AG.
Appeal Br. 2.
Appeal 2019-005262
Application 14/900,311

2
STATEMENT OF THE CASE
Appellant’s invention involves adjusting a hearing device, such as a
hearing aid, by adjusting manually various auditory perceptive dimensions,
namely those pertaining to harmonics, distinction, vowels, and audibility.
Based on this manual adjustment, various frequency modification
parameters are set automatically. See Spec. 4–5, 28–29. Claim 1 is
illustrative:
1. A method for adjusting a hearing device (HD)
comprising frequency transposition means (6) to hearing
preferences of a user of said hearing device (HD), said
frequency transposition means (6) being configurable by at least
two frequency modification parameters (CR, Fk, FHL, W), said
method comprising the steps of:
al) manually adjusting, according to the hearing
preferences of the user, at least two control elements (7) each
associated with a different one of at least two auditory
perceptive dimensions (H, D, V, A);
b1) automatically setting said at least two frequency
modification parameters (CR, Fk, FHL, W) based on said
adjusting of said at least two control elements (7);
cl) performing an auditory performance test to assess
the auditory performance of the user for at least one of the at
least two auditory perceptive dimensions (H, D, V, A); and
subsequently
dl) performing steps al) and bl), step al) then being
based on the outcome of the auditory performance test,
wherein the at least two auditory perceptive dimensions
are distinction (D) and audibility (A).

Appeal 2019-005262
Application 14/900,311

3
THE REJECTION
The Examiner rejected claims 1, 4, 5, 7–13, 15, 17, 19–27, and 29
under 35 U.S.C. § 103 as unpatentable over Allegro-Baumann (US
2014/0105435 Al; published Apr. 17, 2014), Allegro (US 2004/0264721 Al;
published Dec. 30, 2004), and J. Andrew Dundas & Susie Valentine,
Improving the Hearing Aid Fitting: Introducing SoundPoint, Starkey
Laboratories, Inc. (2011) (“Dundas”). Final Act. 2–24.2

FINDINGS, CONCLUSIONS, AND CONTENTIONS
Regarding independent claim 1, the Examiner finds that Allegro-
Baumann’s method for adjusting a hearing device includes (1) adjusting at
least two control elements, where each element is associated with a different
auditory perceptive dimension, and (2) automatically setting at least two of
the recited frequency modification parameters based on the control element
adjustment. Final Act. 3–4. Although the Examiner acknowledges that
Allegro-Baumann does not teach explicitly automatically setting at least two
of the recited frequency modification parameters, the Examiner cites Allegro
as teaching this feature. Final Act. 4–5. The Examiner also acknowledges
that Allegro-Baumann and Allegro lack adjusting at least two control
elements manually according to the user’s hearing preferences. Final Act.
5–6. The Examiner, however, cites Dundas for teaching this feature in
concluding that the claim would have been obvious. Id.

2 Throughout this opinion, we refer to (1) the Final Rejection mailed August
6, 2018 (“Final Act.”); (2) the Appeal Brief filed February 5, 2019 (“Appeal
Br.”); (3) the Examiner’s Answer mailed May 1, 2019 (“Ans.”); and (4) the
Reply Brief filed July 1, 2019 (“Reply Br.”).
Appeal 2019-005262
Application 14/900,311

4
Appellant argues that the cited prior art does not teach or suggest
(1) performing an auditory performance test to assess the user’s auditory
performance for distinction and audibility; (2) subsequently manually
adjusting control elements associated with the distinction and audibility
auditory perceptive dimensions; and (3) automatically setting frequency
modification parameters based on that adjustment. Appeal Br. 7–10; Reply
Br. 2–4. According to Appellant, not only does Allegro fail to teach the
recited manual adjustment, the Examiner’s reliance on Dundas to cure that
deficiency is misplaced, for the resulting combination is said to yield, at
best, (1) a manual perceptive dimension control adjustment; and (2) a
separate, unrelated frequency parameter setting based on a weighting
function. Appeal Br. 7–10; Reply Br. 2–4. Appellant adds that not only is
Allegro’s bandwidth test not a test for auditory perceptive dimensions as
claimed, but also the Examiner’s rejection reads each step in isolation
without regard for their interrelationship. Appeal Br. 9–10.

ISSUES
I. Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Allegro-Baumann, Allegro, and Dundas collectively would have taught
or suggested (1) performing an auditory performance test to assess a user’s
auditory performance for distinction and audibility; (2) subsequently
manually adjusting control elements associated with distinction and
audibility; and (3) automatically setting at least two of the recited frequency
modification parameters based on that adjustment?
Appeal 2019-005262
Application 14/900,311

5
II. Is the Examiner’s proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion?

ANALYSIS
We begin by noting claim 1’s recited sequence. Step a1 recites
manually adjusting, according to the user’s hearing preferences, at least two
control elements, each of which is associated with a different auditory
perceptive dimension, namely distinction and audibility. Step b1 recites
automatically setting at least two of the recited frequency modification
parameters, namely (1) a compression ratio/coefficient (CR)3; (2) lower
cutoff frequency (Fk); (3) upper cutoff frequency (FHL); and (4) frequency
weighting factor (W), where the parameters are set automatically based on
the control element adjustment. Our emphasis underscores that because the
frequency modification parameters are set automatically based on the
manual control element adjustment, step b1 must follow step a1.
Step c1 recites performing an auditory performance test to assess the
user’s auditory performance for at least one of the distinction and audibility
dimensions. Step d1 recites subsequently performing steps a1 and b1, where
step a1 is then based on the test’s outcome.
The recited sequence, then, requires performing the auditory
performance test before performing steps a1 and b1 a second time, such that
at least the second manual control element adjustment in step a1 and

3 Although page 9 of Appellant’s Specification refers to the term “CR” as
compression ratio, it is also referred to as a compression coefficient on page
32. We, therefore, present both articulations here for clarity.
Appeal 2019-005262
Application 14/900,311

6
resulting automatic frequency modification parameter setting in step b1 is
based on the test’s outcome.
In addition, the claim specifies two particular auditory perceptive
dimensions, namely distinction and audibility, which are associated with
respective manually-adjusted control elements. Although the claim does not
detail these particular perceptive dimensions further, the Specification
describes both in detail.
On page 34, the Specification explains that the perceptive dimension
“distinction” is very common in the field of speech hearing tests where a set
of phonemes, such as “ASA” and “AFA,” are presented to an individual who
then indicates whether the phonemes differ or not. Notably, the individual
need not identify the particular phenomes presented, but merely distinguish
one from the other. See Spec. 34. The graph in Appellant’s Figure 9
illustrates a frequency transposition scheme with perception-based controls
whose settings maximize distinction. Id.
The Specification also describes the perceptive dimension
“audibility.” On page 35, the Specification notes that this perceptive
dimension is also referred to as “detection,” and is measured by most
hearing tests. In an audibility test, the individual merely indicates whether a
sound—not which sound—is perceived. See Spec. 35. The graph in
Appellant’s Figure 11 illustrates a frequency transposition scheme with
perception-based controls whose settings maximize audibility. Id.
Turning to the rejection, we see no error in the Examiner’s reliance on
the cited prior art for collectively at least suggesting manually adjusting at
least two control elements that are at least associated with distinction and
audibility, respectively, as claimed.
Appeal 2019-005262
Application 14/900,311

7
Dundas’s computer-based signal processing tool, known as
“SoundPoint,” enables the user to adjust complex hearing aid signal
processing algorithms quickly and easily via an iPAD interface. See
Dundas 1. To this end, the user manipulates fitting parameters as a pointer
is moved around the screen. Dundas 2. The relationship between the
pointer’s position and changes to fitting parameters is recalculated
continuously in real time, thus smoothly blending and transitioning between
various sound qualities, such as loudness, brightness, richness, fullness, and
speech intelligibility. Id.
These manually adjusted sound qualities in Dundas are at least
associated with distinction and audibility. Intelligibility, for example, is
“[t]he extent to which a received signal is intelligible,” where “intelligible”
is defined as “[c]apable of being understood. . . . The more intelligible, the
clearer the reception of a voice transmission.” Steven M. Kaplan, WILEY
ELECTRICAL & ELECTRONICS ENGINEERING DICTIONARY 380 (2004).
Intelligibility, then, is at least associated with distinction consistent
with its description on the Specification’s page 34, for received speech,
including phonemes, that are more intelligible are more likely to be
distinguished. Therefore, the user’s ability to adjust speech intelligibility
manually by moving the pointer on the screen as noted on Dundas’s page 2
at least suggests a control element that is at least associated with distinction
as claimed.
Loudness—another sound quality the user can adjust manually as
noted on Dundas’s page 2—is at least associated with audibility consistent
with its description on the Specification’s page 35, for the perceived volume
or loudness of received sounds will directly affect whether the user perceives
Appeal 2019-005262
Application 14/900,311

8
a sound at all. That is, a sound whose loudness is zero or below a certain
amplitude corresponding to the user’s hearing threshold would not be
perceived by the user and would, therefore, be inaudible. Louder sounds,
however, would be perceived as audible. Therefore, the user’s ability to
adjust loudness manually by moving the pointer on the screen as noted on
Dundas’s page 2 at least suggests a control element that is at least associated
with audibility as claimed.
That Dundas’s page 2 notes that movement in a particular direction
should result in a consistent change in a particular sound quality at least
suggests manually adjusting control elements associated with those
particular directions, respectively. Given this correspondence between
movement direction and changes in a particular sound quality considered in
light of the sound qualities on Dundas’s page 2, ordinarily skilled artisans
would understand that moving the pointer in one direction would adjust one
particular sound quality, for example, loudness. Similarly, moving the
pointer in another direction would adjust another particular sound quality,
for example, speech intelligibility. See Dundas 2.
Although Dundas does not specify the underlying parameter settings
corresponding to these manual perceptive sound quality adjustments, the
audible changes nonetheless result from setting those parameters
automatically by recalculating them continuously as the pointer is moved on
the screen. See Dundas 2.
To be sure, Dundas does not specify these automatically-set
parameters are the particular frequency modification parameters recited in
claim 1, namely (1) a compression ratio/coefficient (CR); (2) lower cutoff
frequency (Fk); (3) upper cutoff frequency (FHL); and (4) frequency
Appeal 2019-005262
Application 14/900,311

9
weighting factor (W). Nevertheless, we see no error in the Examiner’s
reliance on Allegro-Baumann’s paragraphs 98, 141, and 160 and Allegro’s
paragraph 38 for teaching that parameters based on cutoff frequency,
compression ratio, and weighting factors are known in the art, and that
setting those parameters automatically to tailor a hearing aid to a particular
user’s sonic preferences would have been obvious. See Final Act. 3–5.
Given this known parameter adjustment, adjusting such parameters
automatically based on Dundas’ manual adjustments that can adjust up to 64
parameters in real time (see Dundas 1) would have been at least an obvious
variation to those of ordinary skill in the art. Such an enhancement uses
prior art elements predictably according to their established functions—an
obvious improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417
(2007).
To be sure, Dundas does not specify explicitly that manual adjustment
and corresponding automatic parameter adjustment occurs before and after
an auditory performance test as claimed. Dundas, however, nonetheless at
least suggests such a sequence by fine-tuning the settings that are already in
their hearing aids to optimize sound quality. See Dundas 4. These existing
settings would reasonably include those that the users themselves saved to
mark locations of certain preferred settings as shown in Figure 5. See id.
Evaluating, and then fine-tuning, these saved settings to optimize sound
quality would have been an obvious variation well within the level of those
of ordinary skill in the art.
We reach this conclusion noting that testing a hearing aid’s auditory
performance repeatedly and making associated adjustments to achieve
subjectively acceptable settings and optimize sound quality is known in the
Appeal 2019-005262
Application 14/900,311

10
art. See Dundas 1 (noting that optimizing hearing aid sound quality has been
accomplished through a process of patient interview and device adjustment,
sometimes requiring multiple visits to arrive at subjectively acceptable
settings). Given this known iterative sonic optimization process, it would
have been obvious to adjust the auditory perceptive dimensions manually
and automatically set the associated frequency modification parameters of
the hearing aid of the proposed combination after an auditory performance
test. Such an adjustment based on the test’s outcome would further enhance
the hearing aid’s sound quality using the test results as a basis for further
optimizing adjustments—a predictable result.
On this record, the Examiner’s proposed combination of the cited
references at least suggests the recited limitations, and is supported by
articulated reasoning with some rational underpinning to justify the
Examiner’s obviousness conclusion.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 4, 5, 7–13, 15, 17, 19–27, and 29 not argued separately
with particularity.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)
/Basis
Affirmed Reversed
1, 4, 5,
7–13, 15,
17, 19–
27, 29
103 Allegro-
Baumann,
Allegro,
Dundas
1, 4, 5, 7–13,
15, 17, 19–
27, 29

Appeal 2019-005262
Application 14/900,311

11
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)(1). See 37 C.F.R.
§ 41.50(f).
AFFIRMED