DETAILED ACTION
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 .
This action is non-final
Response to Amendment
This Office Action is responsive to the amendment filed on 12/16/2025. As directed by the amendment: Claims 3-6, 8-9, 12-13, 15, 18-20, and 28 have been amended, claims 21-25 have been cancelled, and no claims have been added. Thus, claims 1-20 and 26-30 are presently under consideration in this application.
Response to Arguments
Applicant’s arguments, see page 7, filed 12/16/2025, with respect to claim objections and 35 U.S.C. 112(b) have been fully considered and are persuasive. The amendments obviate the rejection of record. The objections and rejections of the claims have been withdrawn.
Applicant’s arguments, see pages 7-8, filed 12/16/2025, with respect to 35 U.S.C. 112(f) have been fully considered and are persuasive. Examiner agrees with Applicants interpretation of the “balance signal generator”, which Examiner noted incorrectly as a sort of motion sensor described in [0033] of the instant specification. The 35 U.S.C. 112(f) is withdrawn.
Applicant’s arguments, see pages 8-12, filed 12/16/2025, with respect to 35 U.S.C. 103 have been fully considered and are persuasive. Examiner agrees with Applicants remarks about Miller, on page 9, as the Haf cannot correspond to the balance compensation output signal as Haf is not related to compensating vestibular deficiency. Furthermore, Hm pathway does not include a filter/modifier, as argued on page 10 of Applicant’s remarks. The rejection of the claims is withdrawn.
Applicant’s arguments, see pages 12, filed 12/16/2025, with respect to Double Patenting have been fully considered and are persuasive. Examiner agrees with Applicants remarks about Miller, on page 9, as the Haf cannot correspond to the balance compensation output signal as Haf is not related to compensating vestibular deficiency. Furthermore, Hm pathway does not include a filter/modifier, as argued on page 10 of Applicant’s remarks. Therefore, the Miller reference cannot be used in the double patenting rejection. The rejection of the claims is withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 and 26-30 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Similarly, original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP §§ 2163.02 and 2181, subsection IV.
Merely recite a description of the problem to be solved while claiming all solutions to it, leaving the industry to “complete an unfinished invention.” See Ariad, 598 F.3d at 1353
Disclosure of function alone is little more than a wish possession. See MPEP 2163(II)(A)(3)(a).
The written description requirement is not satisfied by merely outlining the goals or results one hopes to achieve with the invention. See MPEP 2163(II)(A)(3)(a).
Claims 1, 6, 10-11, 16-19, and 26 fail to sufficiently describe the balance compensation output signal in enough detail to have sufficient written description. Knowing that the generation of the balance compensation output signals is based on the balance compensation input signal of claims 6 and 16, the mere statement and recitation of the balance compensation output signal generated from the balance signal generator (stimulation generator) in claim 1 while the balance compensation input signal is obtained from a motion sensor appears contradictory without knowing the steps required to achieve the stimulation signal (balance compensation output signal) from the motion signal (balance compensation input signal). However, the instant specification fails to disclose 1) what is the balance compensation output signal composed of, and 2) what are the steps required to jump from the balance compensation input signal to the balance compensation output signal. As noted by the Applicant in the remarks filed 12/16/2025, the balance signal generator is a stimulation generator ([0024]) and the sensors (which can be different motion sensors such as an accelerometer [0033]) are not the same components, which would thereby produce different signals. Fig. 3B and [0061] shows the balance compensation input signal (243) encodes for rotations obtained from movements of the head that produce “characteristics” used to modify the balance compensation output signals, and such modifications will vary between different modalities of stimulation. These characters include “loudness, pitch, stimulation frequency, melody, rhythm, location (e.g., left or right side), stereo effect (e.g., a relative loudness or other difference between playback on left or right sides), other characteristics, or combinations thereof.” [0062] of the instant specification then uses an example of how to apply the stimulation, via audio stimulation, to a user based on the movements. However, it is unknown how these characteristics are applied to the balance compensation output signal to know how to apply the “increased volume” based on a head rotation in the roll axis, of [0062], or the change of tone based a pitch rotation, of [0062]. It is unknown where in the balance compensation output signal can be modified to alter the signal based on these movements. It is further unknown the types of calculations required to modify the balance compensation output signal based on the movements found in the balance compensation input signal. Therefore, claims 1-20 and 26-30 do not provide sufficient written description of the claimed invention.
Claims 1-20 and 26-30 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The analysis of whether the specification complies with the written description requirement calls for the examiner to compare the scope of the claim with the scope of the description to determine whether applicant has demonstrated that the inventor was in possession of the claimed invention. Such a review is conducted from the standpoint of one of ordinary skill in the art at the time the application was filed (see, e.g., Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 865, 26 USPQ2d 1767, 1774 (Fed. Cir. 1993)) and should include a determination of the field of the invention and the level of skill and knowledge in the art. For some arts, there is an inverse correlation between the level of skill and knowledge in the art and the specificity of disclosure necessary to satisfy the written description requirement. Information which is well known in the art need not be described in detail in the specification. See, e.g., Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1379-80, 231 USPQ 81, 90 (Fed. Cir. 1986). However, sufficient information must be provided to show that the inventor had possession of the invention as claimed. See MPEP 2163 (II)(2).
A "representative number of species" means that the species which are adequately described are representative of the entire genus. See MPEP 2163(III)(a)(ii).
The Federal Circuit has explained that a specification cannot always support expansive claim language and satisfy the requirements of 35 U.S.C. 112 "merely by clearly describing one embodiment of the thing claimed." LizardTech v. Earth Resource Mapping, Inc., 424 F.3d 1336, 1346, 76 USPQ2d 1731, 1733 (Fed. Cir. 2005). The issue is whether a person skilled in the art would understand inventor to have invented, and been in possession of, the invention as broadly claimed. In LizardTech, claims to a generic method of making a seamless discrete wavelet transformation (DWT) were held invalid under 35 U.S.C. 112, first paragraph, because the specification taught only one particular method for making a seamless DWT and there was no evidence that the specification contemplated a more generic method. Id.; see also Tronzo v. Biomet, 156 F.3d at 1159, 47 USPQ2d at 1833 (Fed. Cir. 1998)(holding that the disclosure of a species in a parent application did not provide adequate written description support for claims to a genus in a child application where the specification taught against other species). See MPEP 2163(III)(a)(ii).
Claims 1, 11, and 26 fail to sufficiently describe the balance compensation output signal generated from all types of balance signal generators in enough detail for one skilled in the art to have possession of the broadly claimed genus. Although the term balance signal generator is used in the instant specification as a stimulation applied to a user ([0024]) and that stimulation modalities include audio, electric, vibratory, visual, and tactile stimulation (Fig. 3B) in which the balance compensation output signal is obtained from balance compensation input signal based on user movements from a motion sensor ([0061]), the instant specification only defines the output of audio stimulation on a user based on the movement and provides ways in which the movements in certain axes can change “characteristics” and affect the output of stimulation. For example, [0062] discloses that that a head rotation in the roll axis may allow for a first pitch at a first volume to be played and as more rotations occur, the higher the volume increases. It is unknown how this can be implemented for electric, vibratory, visual, and tactile stimulation (outside their mere recitation in [0063]-0066]) as Applicant fails to disclose how the stimulation will occur based on the movements, since balance compensation output signal is based on balance compensation input signal. The only embodiment/species the instant specification details are the audio stimulation that can be altered based on motion data. The instant specification fails to disclose any other embodiment/species in which the stimulation can be altered by the motion data, and therefore does not have a representative number of species to claim the genus, as instantly claimed. Therefore, claims 1-20 and 26-30 do not provide sufficient detail for a person skilled in the art to have been in possession of the invention as broadly claimed.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 16-17, it is unclear how the balance compensation input signal can be obtained from a sensor, specifically a type of motion sensor like an accelerometer as disclosed in [0033] of the instant specification, and then output the balance compensation output signal, which is coming from a balance signal generator, which is an electrical stimulation device. Electrical stimulation signals and accelerometer signals are different than one another and is not possible for the input to begin as a motion signal and then end up as a stimulation signal.
Claim Rejections - 35 USC § 103
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) 1, 9, 11, 14-15, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone).
Regarding claims 1, 11, and 26, Zierhofer teaches An apparatus/method/One or more non-transitory computer readable storage media comprising instructions that, when executed by one or more processors (Abstract “A system and method of generating electrode stimulation signals for an implanted multi-channel electrode array of a cochlear implant” [0046] “Embodiments can be implemented as a computer program product for use with a computer system. Such implementation may include a series of computer instructions fixed either on a tangible medium, such as a computer readable medium”) comprising:
a processing path configured to convert sound input signals into a processing path output signal, wherein the sound processing path comprises a modifier/filtering portion configured to modify the sound input signals (claim 1 “an acoustic audio signal with a bank of filters [modifier], each filter in the bank of filters associated with at least one channel having an electrode, the bank of filters including a first band pass filter that produces a broadband signal b(t) with frequencies that substantially cover at least one of a pitch frequency range of 100 Hz to 400 Hz and a first format range of 400 Hz-1000 Hz”);
balance signal generator configured to generate a balance compensation output signal ([0016] “At least one electrode associated with the first band pass filter is activated with electrode stimulation signals [balance compensation output signal]” [0017] “the at least one electrode may be positioned in an apical area of the cochlea…Activating the at least two electrodes may include stimulating the entire apical area within the cochlea.” [0034] “the implanted stimulator 105” [0039] “To enable a sufficiently high temporal resolution to represent the broadband signal b(t) in combination with, for example, CIS channels, supporting concepts such as the "Channel Interaction Compensation (CIC)" or "Selected Group (SG)" algorithm may be utilized. Using CIC, amplitudes of the electrode stimulation pulses (which may be, without limitation simultaneously activated, sign correlated pulses) are calculated by taking into account parameters of spatial channel interaction reflecting geometric overlapping of electrical fields from each electrode.” Examiner notes that the phrase “balance signal generator configured to generate a balance compensation output signal configured to compensate a vestibular deficiency” is intended use. Because Zierhofer’s electrodes are stimulating the apical area, the device would be capable of compensating vestibular deficiency, as stimulating the apical area is known in the art to compensate vestibular deficiency.); and
wherein the balance signal generator is configured to inject the balance compensation output signal into the processing path subsequent to the modifier (claim 1 “activating at least one electrode associated with the first band pass filter with electrode stimulation signals based, at least in part, on the broadband signal b(t).”).
However, Zierhofer does not explicitly teach the compensation of vestibular deficiency using the balance signal generator. Pelizzone, in the same field of endeavor, teaches electrical stimulation of the cochlea using a speech processing path using microphones and signal sensor/accelerometer (Abstract), and further teaches configured to compensate a vestibular deficiency ([0028] “medical application particularly adapted for a device as proposed is the restoration of a patient's vestibular function, especially due to the above mentioned facts that loss [deficiency] of the auditory” [0042] “unilateral stimulation of one branch of the vestibular nerve using amplitude modulated trains of bi-phasic pulses, i.e., pulses comprising both positive and negative phases.”) to restore vestibular functions for patients with balance disorders ([0005]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the compensation of vestibular deficiency using the balance signal generator of Pelizzone, because such a modification would allow to restore vestibular functions for patients with balance disorders.
Regarding claim 9, Zierhofer teaches wherein the modifier is a filterbank, wherein the balance compensation output signal is injected into the processing path subsequent to at least one additional component in the processing path, and wherein the at least one additional component is subsequent to the modifier ([0036] “Each filter [modifier] is associated with at least one channel 205 having an electrode 207. Each channel 205 may further include, without limitation, a half-wave rectifier 209 [additional component]” See Fig. 2 where following the filter, the rectifier is used, and prior to stimulation.).
Regarding claims 14-15, Zierhofer teaches wherein stimulating the tissue includes:
stimulating the tissue using one or more dedicated balance stimulation electrodes based on a portion of the sound processing path output signal corresponding to the balance compensation output signal (claim 1 “activating at least one electrode associated with the first band pass filter with electrode stimulation signals based, at least in part, on the broadband signal b(t).” [0017] “the at least one electrode may be positioned in an apical area of the cochlea…Activating the at least two electrodes may include stimulating the entire apical area within the cochlea.”).
Claim(s) 2-4, 8, 12, 14, 20, 27, and 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone) and Goorevich et al. (US 20170347213)(IDS)(Hereinafter Goorevich).
Regarding claim 2, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a channel selector. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein the processing path further includes a channel selector (Fig. 3-5 (348 channel selection module)) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the channel selector of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claims 3, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a inject the one or more balance compensation output signals into the processing path subsequent to the channel selector. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein the balance signal generator is configured to inject the one or more balance compensation output signals into the processing path subsequent to the channel selector (See Fig. 4 where Masker signal injection is injected in 456 into sound processing pathway following channel selector 348.) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the inject the one or more balance compensation output signals into the processing path subsequent to the channel selector of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claim 4, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a inject the one or more balance compensation output signals into the processing path prior to the channel selector. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein the balance signal generator is configured to inject the one or more balance compensation output signals into the processing path prior to the channel selector (See Fig. 3 where Masker signal injection is injected in 456 into sound processing pathway before channel selector 348.) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the inject the one or more balance compensation output signals into the processing path prior to the channel selector of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claim 8, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a processing path output signal is configured to cause a hearing percept, the loudness and tone of which encodes balance signals. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein the processing path output signal is configured to cause a hearing percept, the loudness and tone of which encodes balance signals ([0049] “converts one or more sound signals into one or more output signals for use in compensation of a hearing loss of a recipient of the cochlear implant (i.e., output signals for use in generating electrical stimulation signals for delivery to the recipient as to evoke perception of the received sound signals).” The tone and loudness are inherent to the evoked perception of a received sound signal.) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the processing path output signal is configured to cause a hearing percept, the loudness and tone of which encodes balance signals of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claims 12 and 27, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a filtering portion includes applying a channelizing portion of the sound processing path to the sound input signal. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein applying the filtering portion includes applying a channelizing portion of the sound processing path to the sound input signal (See Figs. 3-5 314 filterbank is channeled via post-filterbank module to the channel selection 348.) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the processing path output signal is configured to cause a hearing percept, the filtering portion includes applying a channelizing portion of the sound processing path to the sound input signal of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claims 14 and 29, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a stimulating tissue based on the processing path output signal. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches further comprising: stimulating tissue based on the processing path output signal (90042] “The stimulator unit 132 is configured to utilize the coded data signals to generate stimulation signals (e.g., current signals) for delivery to the recipient's cochlea via one or of the electrodes 138. In this way, cochlear implant 100 stimulates the recipient's auditory nerve cells in a manner that causes the recipient to perceive the received sound signals by bypassing absent or defective hair cells that normally transduce acoustic vibrations into neural activity.”) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the stimulating tissue based on the processing path output signal of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Regarding claim 20, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a wherein the method comprises obtaining the sound input signal from one or more sensors selected from the group consisting of: microphones, telecoils, and wireless audio sources. Goorevich, in the same field of endeavor, teaches a hearing prothesis with an internal and external device for collecting sound information and filtration (Abstract and Fig. 3), and further teaches wherein the method comprises obtaining the sound input signal from one or more sensors selected from the group consisting of: microphones, telecoils, and wireless audio sources ([0036] “one or more sound input elements 108 (e.g., microphones, telecoils, etc.),”) to map selected signals for the optimal output ensuring user comfort ([0064]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the wherein the method comprises obtaining the sound input signal from one or more sensors selected from the group consisting of: microphones, telecoils, and wireless audio sources of Goorevich, because such a modification would allow to map selected signals for the optimal output ensuring user comfort.
Claim(s) 5, 13, and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone) and Van den Heuvel (US 20190060649) (Hereinafter VdH).
Regarding claim 5, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach one or more balance compensation channels for mapping the balance compensation output signal. VdH, in the same field of endeavor, teaches and implantable electrically stimulating hearing prosthesis by sampling sound and motion data (Abstract), and further teaches wherein the apparatus is configured to map the one or more balance compensation output signals to one or more dedicated balance compensation output channels ([0042] “Input channel 156(1) includes the microphone 140(A) and the associated conductor(s) 152 and input channel 156(2) includes the accelerometer 140(B) and the associated conductor(s) 152.”) to monitor electrical feedback attributed to noise ([0079]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the one or more balance compensation channels for mapping the balance compensation output signal of VdH, because such a modification would allow to monitor electrical feedback attributed to noise.
Regarding claims 13 and 28, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach one or more balance compensation channels for mapping the balance compensation output signal. VdH, in the same field of endeavor, teaches and implantable electrically stimulating hearing prosthesis by sampling sound and motion data (Abstract), and further teaches wherein the one or more balance compensation output signals are channelized ([0042] “Input channel 156(1) includes the microphone 140(A) and the associated conductor(s) 152 and input channel 156(2) includes the accelerometer 140(B) and the associated conductor(s) 152.”) to monitor electrical feedback attributed to noise ([0079]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the one or more balance compensation channels for mapping the balance compensation output signal of VdH, because such a modification would allow to monitor electrical feedback attributed to noise.
Claim(s) 6, 16-17, and 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone) and Rajan et al. (US 20200324073) (Hereinafter Rajan).
Regarding claims 6, 16-17, and 30, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a one or more sensors configured to generate a balance compensation input signal, wherein the balance signal generator is configured to generate the one or more balance compensation output signals based on the balance compensation input signal. Rajan, in the same field of endeavor, teaches an audio pathway that uses a filter along with a stimulus (Abstract and [0009]-[0010]), and further teaches further comprising:
one or more sensors configured to generate a balance compensation input signal, wherein the balance signal generator is configured to generate the balance compensation output signals based on the balance compensation input signal ([0053] “The motion sickness adaptation machine learning model 220 may control the stimulus generator 224 to generate an audio signal for alleviating motion sickness dependent on the sensor inputs [balance compensation input signal] received from the sensor module 210. The machine learning model 220 may generate control signals sent to the stimulus generator 224 which adapt characteristics of the generated signal such as burst frequency, period and a strength or amplitude. The user may apply an additional control signal via user control input 212 to adjust the characteristics of the audio stimulus [balance compensation output signal] while the audio controller 200 is in operation.”) to optimize adjustment based on the current user state ([0053]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the one or more sensors configured to generate a balance compensation input signal, wherein the balance signal generator is configured to generate the one or more balance compensation output signals based on the balance compensation input signal of Rajan, because such a modification would allow to optimize adjustment based on the current user state.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone), Rajan et al. (US 20200324073) (Hereinafter Rajan), and Kwasiborski et al. (US 20200294508) (Hereinafter Kwasiborski).
Regarding claim 7, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach a generating gait information. Kwasiborski, in the same field of endeavor, teaches a hearing aid partially implanted in the ear with a microphone for converting a sound (Abstract), and further teaches wherein the one or more sensors are configured to generate gait information ([0035] “the accelerometer may be used to identify the person wearing the hearing device based on gait analysis.”) to determine a deviation of the intended position ([0035]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the generating gait information of Kwasiborski, because such a modification would allow to determine a deviation of the intended position.
Claim(s) 10 and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zierhofer (US 20090018614)(Hereinafter Zierhofer) in view of Pelizzone et al. (US 20160001075)(Hereinafter Pelizzone) and Udesen et al. (US 20190110137) (Hereinafter Udesen).
Regarding claim 10, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach encoding balance information with a pitch and roll axis with a first and second characteristic. Udesen, in the same field of endeavor, teaches a hearing aid partially implanted in the ear with a microphone for converting a sound (Abstract), and further teaches wherein the balance compensation output signal encodes balance information regarding rotation about pitch axis using a first characteristic and balance information regarding rotation about a roll axis using a second characteristic ([0093] “Thus like azimuth of the DOA, head yaw is a horizontal angle and for a non-moving sound source a change in head yaw leads to the same change in azimuth of the corresponding DOA.” [0094] “Head pitch is the angle between the x-axis of the head coordinate system and the horizontal plane.”) to determine head coordinate system ([0091]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the encoding balance information with a pitch and roll axis with a first and second characteristic of Udesen, because such a modification would allow to determine head coordinate system.
Regarding claim 18, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach encoding balance rotation about a first axis using pitch and loudness. Udesen, in the same field of endeavor, teaches a hearing aid partially implanted in the ear with a microphone for converting a sound (Abstract), and further teaches wherein the generating the balance compensation output signal includes encoding rotation about a first axis using pitch and encoding an extent of the rotation about the first axis using loudness in the balance compensation output signal ([0093] “Thus like azimuth of the DOA, head yaw is a horizontal angle and for a non-moving sound source a change in head yaw leads to the same change in azimuth of the corresponding DOA.” [0021] “the terms direction towards the sound source, and the direction of arrival (DOA) of sound originating from the sound source, in short just the DOA, denote the direction from the user wearing the binaural hearing system towards the sound source, e.g., with reference to the forward looking direction of the user.”) to determine head coordinate system ([0091]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the encoding balance rotation about a first axis using pitch and loudness of Udesen, because such a modification would allow to determine head coordinate system.
Regarding claim 19, claim 1 is obvious over Zierhofer and Pelizzone. However, Zierhofer does not teach encoding balance rotation about a first axis using pitch and loudness. Udesen, in the same field of endeavor, teaches a hearing aid partially implanted in the ear with a microphone for converting a sound (Abstract), and further teaches wherein the generating the one or more balance compensation output signals includes: encoding rotation about a second axis using a pitch and encoding an extent of the rotation about the second axis using loudness; and wherein the first axis and the second axis are selected from a group consisting of: a yaw axis, a roll axis, and a pitch axis ([0094] “Head pitch is the angle between the x-axis of the head coordinate system and the horizontal plane.” [0021] “the terms direction towards the sound source, and the direction of arrival (DOA) of sound originating from the sound source, in short just the DOA, denote the direction from the user wearing the binaural hearing system towards the sound source, e.g., with reference to the forward looking direction of the user.”) to determine head coordinate system ([0091]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the method of Zierhofer, with the encoding balance rotation about a first axis using pitch and loudness of Udesen, because such a modification would allow to determine head coordinate system.
Double Patenting
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 § 2146 et seq. 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.
Claims 1, 10-11, 14-16, 18-19, 26, and 29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-17 and 19 of U.S. Patent No. 11,806,530 (Hereinafter Ramos) in in view of Zierhofer (US 20090018614). Although the claims at issue are not identical, they are not patentably distinct from each other because both apparatuses generating a balance compensation output signal based on the around processing pathway.
Regarding claims 1, 11, and 26, Ramos teaches An apparatus (Claim 16 “An apparatus”) comprising:
a sound processing path configured to convert sound input signals into a sound processing path output signal, wherein the sound processing path comprises a modifier configured to modify the sound input signals (Claim 17 “, further comprising: a sound processing path configured to convert a sound input signal into a sound processing path output signal to cause stimulation via the first implantable stimulation assembly”); and
a balance signal generator configured to generate a balance compensation output signal configured to compensate a vestibular deficiency (Claim 16 “a balance signal generator configured to generate one or more balance compensation output signals that bypass the recipient's vestibular system and cause stimulation via the first implantable stimulation assembly after or while the vestibular tissue is stimulated by the second implantable stimulation assembly.”).
Ramos discloses all of the claimed invention except for “wherein the balance signal generator is configured to inject the balance compensation output signal into the sound processing path subsequent to the modifier.” However, Zierhofer, in the same field of endeavor, teaches an implantable cochlear acoustic audio signal with a sound processing pathway for stimulation (Abstract), and further teaches wherein the balance signal generator is configured to inject the balance compensation output signal into the processing path subsequent to the modifier (claim 1 “activating at least one electrode associated with the first band pass filter with electrode stimulation signals based, at least in part, on the broadband signal b(t).”) to separate frequency ranges and avoid distorted phases ([0015]). It would have been obvious to one skilled in the art, prior to the effective filing date of the invention, to modify the apparatus of Ramos, with the balance signal generator that injects balance compensation output signal into the processing path of Zierhofer, because such a modification would allow to separate frequency ranges and avoid distorted phases.
Regarding claims 10, 18, and 19, Ramos teaches wherein the balance compensation output signal encodes balance information regarding rotation about pitch axis using a first characteristic and balance information regarding rotation about a roll axis using a second characteristic (Claim 19 “wherein the balance signal generator is configured to generate the one or more balance compensation output signals such that the one or more balance compensation output signals encode balance information regarding rotation about pitch axis using a first characteristic and balance information regarding rotation about a roll axis using a second characteristic.”).
Regarding claim 14, Ramos teaches further comprising: stimulating tissue based on the sound processing path output signal (Claim 16 “a vestibular signal generator configured to provide stimulation signals to the second implantable stimulation assembly to stimulate the recipient's vestibular tissue”).
Regarding claims 15 and 29, Ramos teaches wherein stimulating the tissue includes:
stimulating the tissue using one or more dedicated balance stimulation electrodes based on a portion of the sound processing path output signal corresponding to the one or more balance compensation output signals (Claim 17 “a sound processing path configured to convert a sound input signal into a sound processing path output signal to cause stimulation via the first implantable stimulation assembly.”).
Regarding claim 16, Ramos teaches wherein the generating of the balance compensation output signal is based on a balance compensation input signal (Claim 16 “a balance signal generator configured to generate one or more balance compensation output signals that bypass the recipient's vestibular system and cause stimulation via the first implantable stimulation assembly after or while the vestibular tissue is stimulated by the second implantable stimulation assembly.”).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Meister et al (US 20160101285)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOUSSA M HADDAD whose telephone number is (571)272-6341. The examiner can normally be reached M-TH 8:00-6:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached at (571) 270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MOUSSA HADDAD/Examiner, Art Unit 3796
/Jennifer Pitrak McDonald/Supervisory Patent Examiner, Art Unit 3796
Prosecution Insights