Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
This is in response to Applicants Request for Continued Examination filed 4/23/26 which has been entered. Claim 9 has been amended. Claim 15 has been cancelled. Claim 19 has been added. Claims 9, 13, and 16-19 are still pending in this application, with Claims 9 and 19 being independent.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. “Link means for communication” of claims 9, 13, and 16-19 are interpreted to cover a radio as in Fig. 4
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such 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. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 9, 13, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kofod-Hansen et al. US Publication No. 20140321682 (from IDS) in view of Ide US Publication No. 20170010674.
Referring to claim 9, Kofod-Hansen et al. teaches a hearing aid system, comprising a left hearing aid, a right hearing aid (para 0184: “The binaural hearing aid system comprises first and second hearing instruments (HI-1, HI-2) adapted for being located at or in left and right ears of a user.”), an external device (para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device”), and link means for communication between the hearing aids and the external device (Fig. 3: antenna (ANT) and transceiver circuitry (Rx/Tx) in HI-1 and HI-2; para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device to provide that information (e.g. control and status signals (e.g. a signal from a detector, e.g. a control input signal), possibly audio signals) can be exchanged or forwarded from one to the other.”), each hearing aid having a respective housing (Fig. 6a: HA1 and HA2 housings), a respective processor (Fig. 3: signal processing unit SPU in each of HI-1 and HI-2) and a respective inertial measurement circuit (Fig. 3: control center DET-CTR and detector DET1 in each of HI-1 and HI-2; para 0177: “DET1 may e.g. comprise a movement sensor, e.g. an acceleration sensor for detecting a linear acceleration of the hearing assistance device and/or a gyroscope sensor for detecting a rotational acceleration of the hearing assistance device.”), wherein the link means enables an exchange of data from the respective inertial measurement circuits between the two hearing aids and with the external device (para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device to provide that information (e.g. control and status signals (e.g. a signal from a detector, e.g. a control input signal), possibly audio signals) can be exchanged or forwarded from one to the other.”), wherein at least one of the two hearing aids and the external device comprises software to establish whether motion vectors by the hearing aids (para 0177: “a movement sensor, e.g. an acceleration sensor for detecting a linear acceleration of the hearing assistance device and/or a gyroscope sensor for detecting a rotational acceleration of the hearing assistance device. Such sensors are e.g. available from Bosch (cf. e.g. MEMS sensor BMX055, comprising both).” – Examiner notes that the MEMS sensor BMX055 is a 9 axis sensor comprising a 3-axis accelerometer) indicate movement as if placed in a normal use position at a head, to establish that the hearing aids are in a condition of normal usage; and wherein at least one of the two hearing aids and the external device comprises software to establish that the motion vectors by both of the hearing aids indicate movement corresponding to placement in the normal use position at the head to establish that the hearing aids are in the condition of normal usage (para 0158: “the respective control units of the two hearing assistance devices are adapted to compare their respective corresponding control input signals and to use the result thereof as an input to controlling the activation or deactivation of said low-power mode of operation of the hearing assistance device.”; para 0186: “In an embodiment, the control input signals ID1 of the respective hearing instruments are compared, and if both comprise an audio signal (INw) or a voiced signal (INm), it is a good indication that the hearing instruments are in operational use (and that a low-power mode should not be entered).”; para 0178: “Detector 1 (DET1) providing control input signal ID1 is assumed to comprise a movement detector configured to indicate whether the hearing assistance device is in movement (ID1=MOVE) or not (ID1=STILL)” – Examiner notes that “operational use” means that the hearing aids are each in respective ears to indicate normal usage) based on a determination by the hearing aid system that an x-component of the motion vector of one hearing aid, an x-component of the motion vector of the other hearing aid, a y-component of the motion vector of the one hearing aid, a y-component of the motion vector of the other hearing aid, and a z-component of the motion vector of the one hearing aid, a z-component of the motion vector of the other hearing aid (para 0177: “DET1 is a sensor providing signals relating to a current physical environment of the hearing assistance device. DET1 may e.g. comprise a movement sensor, e.g. an acceleration sensor for detecting a linear acceleration of the hearing assistance device and/or a gyroscope sensor for detecting a rotational acceleration of the hearing assistance device. Such sensors are e.g. available from Bosch (cf. e.g. MEMS sensor BMX055, comprising both).” – Examiner notes that the MEMS sensor BMX055 is a 9 axis sensor comprising a 3-axis accelerometer).
However, Kofod-Hansen et al. does not teach determining synchronous motion, however, Ide teaches at least one of the two devices comprises software to establish whether motion vectors by the two devices are synchronous based on a determination by the system that an x-component of the motion vector of one device and an x-component of the motion vector of the other device are moving in a synchronous manner, a y-component of the motion vector of the one device and a y-component of the motion vector of the other device are moving in a synchronous manner, and a z-component of the motion vector of the one device and a z-component of the motion vector of the other device are moving in a synchronous manner (para 0059: “the portable electronic device 200 detects the motion M2, which is generated by the motion indicated by arrow Ma…Also at this time, the wearable device 100 detects the motion M1, which is also generated by the motion indicated by arrow Ma. Data representing the motion M2 that is measured by the motion sensor of the portable electronic device 200 is transmitted…from the portable electronic device 200 to the wearable device 100, where the data is received. The wearable device 100 then compares the received data of motion M2 with data corresponding motion M1 and determines whether the two motions are similar or in alternative implementations whether the motion are synchronized.”; para 0030: “whether the two motions are synchronized (e.g., their accelerations are in synchrony)”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to determine synchronous motion, as taught in Ide, for the system of Kofod-Hansen et al. because it provides a more detailed assessment of the movement of devices, rather than merely indicating a simple yes or no to whether there is movement, which provides more data to make a more accurate decision on whether the hearing aids of Kofod Hansen are worn and in operational use. For example, two hearing aids may be moving at the same time, but if the motion itself of each is not similar in some way, then the hearing aids likely aren’t both placed in the ears in an operational mode. Therefore, it is beneficial to compare further motion data of each device when determining operational/normal use.
Referring to claim 13, Kofod-Hansen et al. teaches the hearing aids are aligned on a common axis that passes through the hearing aids in the condition of normal usage, and wherein a distance between the hearing aids on said common axis is constant when the motion vectors by both of the hearing aids are synchronous (para 0199: “when they are placed in/on the ears they are separated by the head”; para 0186: “In an embodiment, the control input signals ID1 of the respective hearing instruments are compared, and if both comprise an audio signal (INw) or a voiced signal (INm), it is a good indication that the hearing instruments are in operational use (and that a low-power mode should not be entered).”; para 0178: “Detector 1 (DET1) providing control input signal ID1 is assumed to comprise a movement detector configured to indicate whether the hearing assistance device is in movement (ID1=MOVE) or not (ID1=STILL)” – Examiner notes that claim 9 states that the motion vectors are synchronous when both hearing aids are placed in a normal use position at the head, and Kofod-Hansen teaches hearing aids at respective ears of the user, therefore, Kofod-Hansen teaches the existence of synchronous motion vectors. Therefore, when the hearing aids are at the ears of the user, a distance between the hearing aid is constant when motion vectors of the hearing aids are synchronous.).
Referring to claim 19, Kofod-Hansen et al. teaches a hearing aid system, comprising a left hearing aid, a right hearing aid (para 0184: “The binaural hearing aid system comprises first and second hearing instruments (HI-1, HI-2) adapted for being located at or in left and right ears of a user.”), an external device (para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device”), and link means for communication between the hearing aids and the external device (Fig. 3: antenna (ANT) and transceiver circuitry (Rx/Tx) in HI-1 and HI-2; para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device to provide that information (e.g. control and status signals (e.g. a signal from a detector, e.g. a control input signal), possibly audio signals) can be exchanged or forwarded from one to the other.”), each hearing aid having a respective housing (Fig. 6a: HA1 and HA2 housings), a respective processor (Fig. 3: signal processing unit SPU in each of HI-1 and HI-2) and a respective inertial measurement circuit (Fig. 3: control center DET-CTR and detector DET1 in each of HI-1 and HI-2; para 0177: “DET1 may e.g. comprise a movement sensor, e.g. an acceleration sensor for detecting a linear acceleration of the hearing assistance device and/or a gyroscope sensor for detecting a rotational acceleration of the hearing assistance device.”), wherein the link means enables an exchange of data from the respective inertial measurement circuits between the two hearing aids and with the external device (para 0154: “the system is adapted to establish a communication link between the hearing assistance device and the auxiliary device to provide that information (e.g. control and status signals (e.g. a signal from a detector, e.g. a control input signal), possibly audio signals) can be exchanged or forwarded from one to the other.”), wherein at least one of the two hearing aids and the external device comprises software to establish whether motions by the hearing aids (para 0177: “a movement sensor, e.g. an acceleration sensor for detecting a linear acceleration of the hearing assistance device and/or a gyroscope sensor for detecting a rotational acceleration of the hearing assistance device. Such sensors are e.g. available from Bosch (cf. e.g. MEMS sensor BMX055, comprising both).” – Examiner notes that the MEMS sensor BMX055 is a 9 axis sensor comprising a 3-axis accelerometer) indicate movement corresponding to placement in a normal use position at a head to establish that the hearing aids are in a condition of normal usage based on relative accelerations between the hearing aids (para 0158: “the respective control units of the two hearing assistance devices are adapted to compare their respective corresponding control input signals and to use the result thereof as an input to controlling the activation or deactivation of said low-power mode of operation of the hearing assistance device.”; para 0186: “In an embodiment, the control input signals ID1 of the respective hearing instruments are compared, and if both comprise an audio signal (INw) or a voiced signal (INm), it is a good indication that the hearing instruments are in operational use (and that a low-power mode should not be entered).” – Examiner notes that “operational use” means that the hearing aids are each in respective ears to indicate normal usage; para 0178: “Detector 1 (DET1) providing control input signal ID1 is assumed to comprise a movement detector configured to indicate whether the hearing assistance device is in movement (ID1=MOVE) or not (ID1=STILL)”; para 0102: “a movement detector, e.g. an accelerometer for detecting a linear movement of the hearing assistance device, and/or a detector of a change of angular momentum on the hearing assistance device (e.g. gyroscope)…can contribute to indicating a current state of the user (…or a state or environmental condition of the hearing assistance device, worn or not worn)”).
However, Kofod-Hansen et al. does not teach determining synchronous motion, however, Ide teaches at least one of the two devices comprises software to establish whether motion vectors by the two devices are synchronous (para 0059: “the portable electronic device 200 detects the motion M2, which is generated by the motion indicated by arrow Ma…Also at this time, the wearable device 100 detects the motion M1, which is also generated by the motion indicated by arrow Ma. Data representing the motion M2 that is measured by the motion sensor of the portable electronic device 200 is transmitted…from the portable electronic device 200 to the wearable device 100, where the data is received. The wearable device 100 then compares the received data of motion M2 with data corresponding motion M1 and determines whether the two motions are similar or in alternative implementations whether the motion are synchronized.”; para 0030: “whether the two motions are synchronized (e.g., their accelerations are in synchrony)”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to determine synchronous motion, as taught in Ide, for the system of Kofod-Hansen et al. because it provides a more detailed assessment of the movement of devices, rather than merely indicating a simple yes or no to whether there is movement, which provides more data to make a more accurate decision on whether the hearing aids of Kofod Hansen are worn and in operational use. For example, two hearing aids may be moving at the same time, but if the motion itself of each is not similar in some way, then the hearing aids likely aren’t both placed in the ears in an operational mode. Therefore, it is beneficial to compare further motion data of each device when determining operational/normal use.
Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kofod-Hansen et al. and Ide, as shown in claim 9 above, and further in view of Pedersen et al. US Publication No. 20150230036.
Referring to claim 16, Kofod-Hansen et al. teaches each hearing aid has a respective accelerometer configured to detect the motion vector for each hearing aid (para 0177). However, Kofod-Hansen et al. and Ide do not teach using the accelerometers to detect roll, yaw, and pitch, but Pedersen et al. teaches each hearing aid has a respective accelerometer configured to detect the motion vector for each hearing aid, and wherein the at least one of the two hearing aids and the external device comprises software to combine the motion vectors detected by each accelerometer of the one hearing aid and the other hearing aid to detect rotation, the rotation comprising a roll component, a yaw component, and a pitch component (para 0282: “An accelerometer will measure the direction of the gravity field and the pitch can then be determined by calculation of the difference between the actual directions of the gravity and a previous determined `normal` direction i.e. the established z-axis. If two hearing aids both estimate pitch, they can combine their results for better precision.”; para 0283: “With an accelerometer there are two ways to estimate yaw”; para 0287: “Roll can be determined as yaw but using acceleration in the z-plane instead of the x-plane.”). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use accelerometers to determine rotation, as taught in Pedersen et al., in the system of Kofod-Hansen et al. and Ide because it prevents the need for a gyroscope or more elaborate, expensive, and complicated sensor by utilizing a standard accelerometer to achieve more tasks and also provides further assessment of the movement of devices to make a more accurate decision on whether the hearing aids are worn and in synchronous motion..
Referring to claim 17, Pedersen et al. teaches the at least one of the two hearing aids and the external device comprises software to establish that the hearing aids are in the condition of normal usage based on the roll component, the yaw component, or the pitch component detected from the motion vectors (para 0282: “An accelerometer will measure the direction of the gravity field and the pitch can then be determined by calculation of the difference between the actual directions of the gravity and a previous determined `normal` direction i.e. the established z-axis. If two hearing aids both estimate pitch, they can combine their results for better precision.”; para 0283: “With an accelerometer there are two ways to estimate yaw”; para 0287: “Roll can be determined as yaw but using acceleration in the z-plane instead of the x-plane.”; 0313-0315: “the movement sensor (e.g. an accelerometer) is used to detect that the hearing instrument is placed on the ear and then configured to power up fully with full gain. The following three or four detections could preferably be present: Movement: The hearing instrument is not lying still. Angle: The angle of the hearing instrument is close to the angle it is expected to have when operationally mounted on the ear” – Examiner notes that a person having ordinary skill in the art could use the accelerometer, which is used to determine yaw, roll, and pitch, as in paras 0282, 0283, 0287, to determine normal usage positions of the hearing aids, as in paras 0313-0315.). Motivation to combine is the same as in claim 16.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kofod-Hansen et al., Ide, and Pedersen et al., as shown in claims 9 and 16 above, and further in view of Chen US Publication No. 20150312393.
Referring to claim 18, Pedersen et al. teaches the at least one of the two hearing aids and the external device comprises software to establish that the hearing aids are in the condition of normal usage based on the roll component, the yaw component, and the pitch component detected from the motion vectors (paras 0282,0283, 0287,0313-0315). However, Kofod-Hansen et al., Ide, and Pedersen et al. do not teach rotation being less than a value, but Chen teaches rotation being less than a predetermined value (para 0031: “the user performs the removing action… detects whether the angular velocity of the mobile phone is greater than a threshold value – Examiner notes that if angular velocity being above such threshold value indicates removal, being below the value will mean that the device is held steady at the ear or the device is laying still. Especially with other metrics defined earlier that establish motion does exist, the rotation below the threshold will obviously indicate normal usage at the ear.). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to compare rotation to a threshold, as taught in Chen, in the system of Kofod-Hansen et al., Ide, and Pedersen et al. because it provides further assessment of the movement of devices to make a more accurate decision on whether the hearing aids are worn and in synchronous motion.
Response to Arguments
Applicant's arguments filed 4/23/26 have been fully considered but they are not persuasive.
Applicant states in paras 1-2 on page 10 of the remarks:
“However, even if para. [0178] of Kofod-Hansen describes a detector 1 (DET1) providing control input signal ID 1 assumed to comprise a movement detector configured to indicate whether the hearing assistance device is in movement (ID1=MOVE) or not (ID1=STILL), Applicant notes that, as cited by the Examiner, para. [0186] of Kofod-Hansen describes that the hearing aid is determined to be in operational use (alleged normal usage) based on the presence of either of an audio signal or a voiced signal in the control input signal ID 1, not whether the control input signal ID 1 indicates "MOVE" or "STILL".
That is, while control input signal ID 1 may indicate whether the hearing assistance device is moving or not, the indication of whether the hearing assistance device is moving or not is not the same as a determination of the operational use (alleged normal usage). Even Kofod-Hansen implicitly recognizes the difference, as the determination for operational use (alleged normal usage) described in Kofod-Hansen is based on a presence of an audio signal INw or a voiced signal INm in either one, or both, of the signals ID 1 of the respective hearing instruments. ”
Examiner respectfully disagrees. In Kofod-Hansen, DET1 and its control input signal ID1 are used to determine the operational use of the hearing aid, as shown in para 0186. This paragraph gives one example where the DET1 comprises input signals that may or may not comprise audio or voice signals. However, this is merely one example. Para 0178 gives another example of signals that DET1 can provide and this other example is providing movement signals. Logic says that if DET1 provides signals to determine hearing aid operational use, as in para 0186, then the movement signals from DET1 of para 0178 can also be used to determine hearing aid operational use. Further, para 0102 sates that “a movement detector, e.g. an accelerometer for detecting a linear movement of the hearing assistance device, and/or a detector of a change of angular momentum on the hearing assistance device (e.g. gyroscope)” “can contribute to indicating a current state of the user (…worn or not worn)”. This shows that motion vector data is used to indicate whether hearing aids are worn or not worn. Therefore, Kofod-Hansen teaches determination of operational use (or normal usage) based on motion vectors.
Applicant states in para 2 on page 11 and paras 1-2 on page 12 to the top of page 13 of the remarks:
“However, Ide is directed to a relationship between a wearable device and a portable device, where the determination of the wearable device and the portable device being in close proximity and the motion of the wearable device and the portable device being synchronous is used to unlock the portable device. One skilled in the art would not look to an invention that compares motion of a wearable device and motion a non-wearable device for performing unlocking of the non-wearable device as motivation to modify hearing aids to establish whether the hearing aids are in a condition of normal usage, especially when the primary reference already provides its own solution for this.
Applicant respectfully submits that this rejection is based on impermissible hindsight, as the Examiner is creating a solution to a problem that is nowhere identified in primary reference Kofod-Hansen. As discussed above, Kofod-Hansen already describes the use of detecting audio signals and/or video signals among a control signal as the criteria for determining whether the hearing assistance device is in operational use (alleged normal usage). Therefore, given that Kofod-Hansen already provides a solution for determining operational use (alleged normal usage), which is detecting whether audio signals or video signals are present in a control signal associated with the hearing assistance device, there is no reason to "provide a more detailed assessment of the movement of devices" to "provide more data to make a more accurate decision on whether the hearing aids of Kofod Hansen are worn and in operational use" as suggested by the Examiner.
In fact, as discussed above, Kofod-Hansen describes that the hearing aid is determined to be in operational use (alleged normal usage) based on the presence of either of an audio signal or a voiced signal in the control input signal ID 1, not whether the control input signal ID 1 indicates "MOVE" or "STILL". Thus, even if one were motivated to modify Kofod-Hansen in view of Ide, which Applicant does not concede, to "provide a more detailed assessment of the movement of devices, rather than merely indicating a simple yes or no to whether there is movement," as suggested by the Examiner, modified Kofod-Hansen would still describe that the hearing aid is determined to be in operational use (alleged normal usage) based on the presence of either of an audio signal or a voiced signal in the control input signal ID1, not based on the movement of the hearing assistance device.”
”
Examiner respectfully disagrees. First of all, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). As shown above, Kofod-Hansen is relied upon to teach using motion vectors to determine normal usage of hearing aids. Ide is merely used to teach the concept of synchronous motion. The motion in Kofod-Hansen uses motion vectors to determine motion versus no motion, but does not teach using motion vectors to determine if two objects are moving in a similar (or synchronous) way. Therefore, Ide is brought in to solve the problem of how to more accurately compare motion data of two objects. Ide teaches that two objects have not only motion, but similar motion.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). When combined with Kofod-Hansen, Ide’s comparison of motion allows for a more detailed assessment of motion to take place. Though Kofod-Hansen teaches one way of determining motion, it does not mean that Kofod-Hansen necessarily teaches the only way or the best way. There are often alternative methods or ways of further improvement not present in a given invention. One of ordinary skill in the art at the time the claimed invention was made would know that there would be a more accurate way of comparing motions, especially due to the information provided by the accelerometer of Kofod-Hansen. When only a determination of motion verses not motion is made, it is possible that someone could be holding both hearing aids in his hands and swinging his arms about. This would certainly indicate motion but it would not indicate synchronous motion. It is merely logic that when hearing aids are both worn at the ears of the user, the motion will be synchronous, so determining synchronous motion of two object, as in Ide, is beneficial in providing a more accurate determination of normal usage of the hearing aids in Kofod-Hansen.
Conclusion
Examiner respectfully requests, in response to this Office Action, support be shown for language added to any original claims on amendment and any new claims. That is, indicate support for newly added claim language by specifically pointing to page(s) and line number(s) in the specification and/or drawing figure(s). This will assist Examiner in prosecuting the application.
When responding to this Office Action, Applicant is advised to clearly point out the patentable novelty which he or she thinks the claims present, in view of the state of the art disclosed by the references cited or the objections made. He or she must also show how the amendments avoid such references or objections. See 37 CFR 1.111(c).
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/KATHERINE A FALEY/Primary Examiner, Art Unit 2693
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