The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claims 1-4, 7, 8, 10-13, 15-19, and 21-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 9-15, 20, and 21 of U.S. Patent No. 12,069,436. Although the claims at issue are not identical, they are not patentably distinct from each other because: as noted by the Federal Circuit in Eli Lilly v. Barr, “[a] a patentable distinction does not lie where a later claim is anticipated by an earlier one” (see also In re Berg and In re Goodman which established that a later genus claim limitation is anticipated by, and therefore not patentably distinct from, an earlier species claim).
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 1-4, 9, 13, 20, 23, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Apfel et al. (US 2011/0176697) considered with Gran et al. (US 2019/0342677).
Apfel discloses an ear-worn electronic device 102 configured to be worn in, on or about an ear of a wearer, and a method implemented by the ear-worn electronic device, comprising: at least one microphone 116 configured to sense sound in an acoustic environment (see para. 0018); an acoustic transducer 118; a non-volatile memory 104 configured to store a plurality of parameter value sets 112 (e.g., Hearing Aid Profiles; see para. 0023, regarding “a hearing aid profile can include gain settings and frequency settings for modulating sound-related signals into a modulated form that is suitable for reproduction by speaker 118 for the user to hear properly”), each of the parameter value sets 112 associated with a different acoustic environment (e.g., hearing aid profile of car environment, hearing aid profile of office environment, hearing aid profile of bar environment, etc; see fig. 1, Hearing Aid Profiles 112); a control input configured to receive a control input signal produced by at least an external electronic device 150 communicatively coupled to the ear-worn electronic device 102 in response to a user action (see para. 0030, regarding “the user may interact with user interface 172 to select … one of the hearing aid profiles… The user can interact with input interface to transmit the selected … hearing aid profile to the hearing aid 102”); and a processor 114 operably coupled to the microphone 116, the acoustic transducer 118, the memory 104, and the control input, the processor 114 configured to classify the acoustic environment using the sensed sound (see para. 0039, regarding “processor 114 could compare the sound sample to a value assigned to each of the hearing aid profiles stored in memory 104 to determine if one of the stored profiles can shape the sounds to produce a satisfactory sound profile”), select one of the parameter value sets 112 (e.g., Hearing Aid Profiles) corresponding to the classified acoustic environment, and apply, the selected parameter value set 112 (e.g., Hearing Aid Profiles) in response to the control input signal (see para. 0029-0030, regarding “processor 168 may … provide data related to the one or more possible hearing aid profiles to the GUI for display at display interface 174. The one or more possible hearing aid profiles may include a recommended hearing aid profile, which may be determined automatically by processor 168 based on a comparison between the sound sample data in the alert and hearing aid profile data stored in memory 152. … Once the GUI is available, the user may interact with the input interface 172 to select … one of the hearing aid profiles 164” which includes the recommended hearing aid profile).
Apfel discloses the invention as claimed, including that a control input is configured to receive a control input signal produced by a user-actuatable control in response to a touch or a tap by the user (see para. 0029-0030, regarding “a user interface … for user input to adjust [or select] a hearing aid profile of hearing aid 102”), but fails to specifically teach that the ear-worn electronic device 102, rather than the computing device 150, includes the control input as claimed. Gran discloses a hearing aid including a user-actuatable control comprising “buttons, toggle switches, etc, of the hearing aid housings”, in the same field of endeavor, for the purpose of enabling the user of the hearing aid to “select one of the available signal processing algorithms to obtain the desired hearing loss compensation in the sound environment in question” (see para. 0072-0074).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Apfel, in view of Gran, such that a user-actuatable control (e.g., buttons, toggle switches, etc.), for selecting one of the hearing aid profiles stored in memory 104 (Apfel, para. 0030), is disposed on the ear-worn electronic device 102 rather than on the external electronic device 150. A practitioner in the art would have been motivated to do this for the purpose of enabling the wearer of the ear-worn electronic device 102 to produce a control input with a user interface located on the ear-worn electronic device 102 for selecting a recommended hearing aid profile stored in memory 104 as determined by the processor 114.
Regarding claim 2, the user-actuatable control comprises one or both of a button disposed on the device and a sensor responsive to the touch or the tap by the wearer. See Gran, para. 0074.
Regarding claim 3, each of the parameter value sets 112 (e.g., Hearing Aid Profiles) comprise a set of gain values or gain offsets associated with a different acoustic environment, and a set of noise-reduction parameters associated with the different acoustic environments. See Apfel, para. 0023, regarding “a hearing aid profile can include gain settings and frequency settings”. See also, Apfel, para. 0024, regarding “enhance[ing] the sound related signals for the particular sound environment. Such parameters can include signal amplitude and gain characteristics, signal processing algorithms, frequency response characteristics, coefficients associated with one or more signal processing algorithms, or any combination thereof”.
Regarding claim 4, the parameters value sets 112 (e.g., Hearing Aid Profiles) includes a normal parameter value set associated with a normal or default acoustic environment (e.g., “1.0 Original Hearing Aid Profile”), and a plurality of other parameter value sets each associated with a different acoustic environment (e.g., “1.1 Car”, “1.2 Office”, “2.0 Bar”, etc.), wherein each of the other parameter value sets defines offsets to parameters of the normal parameter value set as claimed (see para. 0030, for example, regarding “modify one of the hearing aid profiles”).
Regarding claims 9 and 20, Apfel further teaches that subsequent to applying an initial parameter value set appropriate for an initial classification of a current acoustic environment in response to receiving an initial control input signal (e.g., “1.0 Original” Hearing Aid Profile, in response to a user-initiated trigger of sampling sound; see para. 0025, regarding that sound samples can be “captured periodically, randomly, or in response to a … user-initiated trigger”), the processor is 114 is configured to automatically apply an adapted parameter value set appropriate for the initial or a subsequent classification of the current acoustic environment in the absence of receiving a subsequent control input signal by the processor 114 (see para. 0039, regarding the “processor 114 selects a hearing aid profile from the list based on the sound samples to provide a quick update process. For example, processor 114 could compare [a periodically or randomly captured] sound sample to a value assigned to each of the hearing aid profiles stored in memory 104 to determine if one of the stored profiles can shape the sounds to produce a satisfactory sound profile”).
Regarding claims 23 and 24, selecting one of the parameter value sets 112 (e.g., Hearing Aid Profiles) comprises using the classified acoustic environment to identify a corresponding value set 112 stored in the non-volatile memory 104. The processor is configured to select one of the parameter value sets 112 prior to applying the selected parameter value sets 112. See para. 0029-0030, regarding “processor 168 may … provide data related to the one or more possible hearing aid profiles to the GUI for display at display interface 174. The one or more possible hearing aid profiles may include a recommended hearing aid profile, which may be determined automatically by processor 168 based on a comparison between the sound sample data in the alert and hearing aid profile data stored in memory 152. … Once the GUI is available, the user may interact with the input interface 172 to select … one of the hearing aid profiles 164” to be applied, which includes the recommended hearing aid profile.
Claims 5, 6, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Apel et al. (US 2011/0176697) and Gran et al. (US 2019/0342677), as applied to claims 1 and 13 above, considered with Vaughn et al. (US 10,235,128).
Apel, as modified and applied to claims 1 and 13 above, discloses the invention as claimed, but fails to specifically teach that the device includes a sensor arrangement comprising one or more sensors configured to sense, and produce sensor signals indicative of, one or more of a physical state, a physiologic state, and an activity status of the wearer, and classify the sensed sound using the sensed sound, and apply, in response to the control input, one of the parameter value sets appropriate for the classified acoustic environment and one or more of the physical state, the physiologic state, and the activity status of the wearer. Vaughn discloses a hearing device (e.g., earbuds or headset; see figs. 7-8) including a sensor arrangement comprising one or more sensors configured to sense, and produce sensor signals indicative of a physical state, a physiologic state, and an activity status of a user (see col. 5, lines 40-67), and classify an acoustic environment of the user using sensed sound, and apply a parameter value set appropriate for the classified acoustic environment and one or more of the physical state, the physiologic state, and the activity status of the user. For example (see col. 17, line 65, through col. 18, line 16), when a jogger is sensed as being in motion, the active noise filtering may be disabled (e.g., more dangerous environment), and when the jogger is sensed as being stationary, the active noise filtering may be enabled (e.g., less dangerous environment). Vaughn discloses such a hearing device which classifies an acoustic environment of the user using sensed sound, and applies a parameter value set appropriate for the classified acoustic environment, in the same field of endeavor, for the purpose of “modifying settings and/or parameters for an audio subsystem” depending on the sensed context of the user (see col. 7, lines 18-21).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify Apel, in view of Vaughn, such that the device includes a sensor arrangement comprising one or more sensors configured to sense, and produce sensor signals indicative of, one or more of a physical state, a physiologic state, and an activity status of the wearer, and classify the sensed sound using the sensed sound, and apply, in response to the control input, one of the parameter value sets appropriate for the classified acoustic environment and one or more of the physical state, the physiologic state, and the activity status of the wearer. A practitioner in the art would have been motivated to do this for the purpose of modifying parameters for the audio subsystem depending on the sensed context (e.g., activity status) of the wearer.
Claims 7 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Apel et al. (US 2011/0176697) and Gran et al. (US 2019/0342677), as applied to claims 1 and 13 above, considered with Bryan et al. (US 2019/0066710).
Apfel, as modified and applied to claims 1 and 13 above, discloses the invention as claimed, but fails to specifically teach that the processor is configured to apply a selected parameter value set that enhances intelligibility of speech in the acoustic environment. Rather, Apfel only teaches that the stored parameter value sets 112 are associated with an acoustic environment related to, for example, an “Office”, a “Bar”, a “Club”, or a “Home” (see fig. 1), without specifically disclosing that such environments include muffled or unintelligible speech. Bryan discloses an electronic device including speech enhancement processing, wherein an acoustic environment with “muffled or unintelligible” speech is detected with a microphone and “speech enhancement using spectral shaping, acoustic echo cancellation, noise reduction, blind source separation and pickup beamforming (audio processing algorithms) are commonly used [in the same field of endeavor] to improve speech quality and intelligibility…” (see para. 0002-0003).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify Apfel, in view of Bryan, such that the processor is configured to apply a selected parameter value set that enhances intelligibility of speech in the acoustic environment. A practitioner in the art would have been motivated to do this for the purpose of enhancing intelligibility of muffled speech present in the acoustic environment (e.g., muffled speech present in an Office, a Bar, a Club, or a Home environment, for example).
Claims 10-12, 16-18, 21, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Apfel et al. (US 2011/0176697) and Gran et al. (US 2019/0342677), as applied to claims 1 and 13 above, in further view of Sabin (US 2015/0271607).
Apfel, as modified and applied to claims 1 and 13 above, discloses the invention as claimed, including applying one or more different parameter value sets appropriate for the classified environment in response to one or more subsequently received control signal inputs (see Apfel, para. 0035, regarding “when a user frequents a particular environment on a regular basis, the user may decide to establish a custom profile for that particular environment which can be maintained in memory 104 of hearing aid 102…, enhancing the performance of hearing aid 102 and improving the user’s overall acoustic experience”), but fails to specifically teach learning wearer preferences (e.g., using a machine learning algorithm) using utilization data and/or contextual data acquired during application of the different parameter value sets applied by the processor, the utilization data and/or contextual data being stored in the memory, and adapt selection of subsequent parameter value sets by the processor for subsequent use in a current acoustic environment using the learned wearer preferences, the utilization data and/or the contextual data. Sabin discloses a hearing assistant device and method including a processor operable to adjust various parameters for processing a signal detected from an acoustic environment, further including using a machine learning algorithm (see para. 0058) to learn user preferences using utilization data (e.g., “historical data from a community of similar users, which can be used for predicting a set of parameters a given user is likely to prefer”; para. 0039) and contextual data (e.g., historical user behavior at a given time”; para. 0042) acquired during application of the various parameters applied by the processor, the utilization data and contextual data being stored in memory, and adapt selection of subsequent parameter value sets by the processor for subsequent use in the current acoustic environment using the learned wearer preferences, the utilization data and the contextual data (see para. 0055). Sabin discloses such a hearing assistant device and method, in the same field of endeavor, for the purpose of dynamically and automatically adjusting settings of the hearing assistant device in an acoustic environment of the user based on the utilization data and/or contextual data acquired, thereby improving the performance of the hearing assistant device in the acoustic environment without the user having to manually perform adjustments of the settings.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to further modify Apfel, in view of Sabin, such that the processor is further configured to learn wearer preferences (e.g., using a machine learning algorithm) using utilization data and/or contextual data acquired during application of the different parameter value sets applied by the processor, the utilization data and/or contextual data being stored in the memory, and adapt selection of subsequent parameter value sets by the processor for subsequent use in a current acoustic environment using the learned wearer preferences, the utilization data and/or the contextual data. A practitioner in the art would have been motivated to do this for the purpose of dynamically and automatically adjusting settings of the ear-worn electronic device in an acoustic environment of the user based on the utilization data and/or contextual data acquired, thereby improving the performance of the hearing assistant device in the acoustic environment without the user having to manually perform adjustments of the settings.
Claims 8 and 19 would be allowable if rewritten to include all of the limitations of the base claim and any intervening claims and if a Terminal Disclaimer is timely filed as explained above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL W HUBER whose telephone number is (571)272-7588.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen, can be reached at telephone number 571-272-7503. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL W HUBER/Primary Examiner, Art Unit 2691
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September 12, 2026
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