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 .
Status of the Claims
This Office Action is in responsive to the preliminary amendment filed on 11/4/2022. As directed by the Preliminary amendment, claims 2-18 were amended. Thus, claims 1-18 are currently pending in this application.
Drawings
The drawings are objected to because Fig. 2 contain unlabeled text boxes 11, 12, 14 which should be provided with a descriptive text label (e.g. box 11 could have the label “speaker”) (see MPEP 608.02(d)(a)). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 7-8, 11, and 13 are objected to because of the following informalities:
Claim 7 recites “the first frequency samples and the second frequency samples” in lines 4-5, and is suggested to read --the one or more first frequency samples and the one or more second frequency samples-- in order to more clearly reference how these limitations were originally claimed.
Claim 8 recites “the first frequency samples and the second frequency samples” in lines 2-3, and is suggested to read --the one or more first frequency samples and the one or more second frequency samples-- in order to more clearly reference how these limitations were originally claimed.
Claim 11 recites “the first frequency samples and/or the second frequency samples” in lines 5-6, and is suggested to read --the one or more first frequency samples and/or the one or more second frequency samples-- in order to more clearly reference how these limitations were originally claimed.
Claim 11 recites “the first frequency samples and the second frequency samples” in lines 8 and 10, and is suggested to read --the one or more first frequency samples and the one or more second frequency samples-- in order to more clearly reference how these limitations were originally claimed.
Claim 13 recites “the first frequency samples and the second frequency samples” in lines 4-5, and is suggested to read --the one or more first frequency samples and the one or more second frequency samples-- in order to more clearly reference how these limitations were originally claimed.
Appropriate correction is required.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation is: “a control unit…analyses” in claim 1 line 2.
Because this claim limitation is being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it is being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this limitation 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 to avoid it 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 recites sufficient structure to perform the claimed function so as to avoid it being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
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 1-18 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.
Claim 1 limitation “a control unit…analyses” in line 2 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The disclosure is devoid of any structure that performs the function in the claim. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Regarding claim 1, the limitations “outputs” in lines 2-3 and “controls” in line 3 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear. The Examiner suggests using claim language such as --configured to-- or --adapted for-- in order to avoid claiming method steps in an apparatus claim.
Claim 2 recites the limitation "the relative flow rates" in line 2. There is insufficient antecedent basis for this limitation in the claim. Moreover, the limitation “the relative flow rates” in line 2 is confusing, as it is unclear whether this limitation is meant to include “a flow rate” in claim 1.
Regarding claim 3, the limitation “in response to determining…increases” in lines 3-4 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, the limitations “a side” in line 4 and “the opposite, downstream side” in line 5 are confusing, as it is unclear whether these limitations are meant to be the same as or different from “a first side” and “a second opposite side”, respectively. For the purposes of examination, they will be interpreted as the same respective claim limitations. Furthermore, the limitation “the relative flow rate” in line 4 is confusing, as it is unclear whether this limitation is meant to be a part of “the relative flow rates” in claim 2.
Regarding claim 4, the limitations “generates” in line 2 and “combine to generate” in line 3 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, claim 4 recites the limitation "the direction of the combined flow" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 6, the limitation “determines” in line 2 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 7, the limitations “transforms” in lines 2-3 and “determines” in line 4 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 8, the limitation “determines” in line 2 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 9, the limitation “determines” in line 2 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 10, the limitation “determines” in lines 2-3 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 11, the limitations “transforms” in lines 2-3 and “determines” in line 4 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, claim 11 recites the limitation "the energies" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 12, the limitations “analyses” in line 2 and “controls” in line 3 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 13, the limitations “transforms” in lines 2-3 and “determines” in line 4 are confusing, as these are method steps while the claim is for an apparatus, and thus the scope of the claim is unclear.
Regarding claim 14, the limitation “controls” in line 2 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, claim 14 recites the limitation "the relative flow rates" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Furthermore, the limitation “the relative flow rates” in lines 2-3 is confusing, as it is unclear whether this limitation is meant to include “a flow rate” in claim 1.
Regarding claim 15, the limitation “in response to determining…increases” in lines 3-4 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, the limitations “a side” in line 4 and “the opposite, downstream side” in line 5 are confusing, as it is unclear whether these limitations are meant to be the same as or different from “a first side” and “a second, opposite side”, respectively. For the purposes of examination, they will be interpreted as the same respective claim limitations. Furthermore, the limitation “the relative flow rate” in line 4 is confusing, as it is unclear whether this limitation is meant to be a part of “the relative flow rates” in claim 14.
Regarding claim 18, the limitation “analyses” in line 3 is confusing, as this is a method step while the claim is for an apparatus, and thus the scope of the claim is unclear. Moreover, the limitation “signals” in line 3 is confusing, as it is unclear whether this limitation is meant to include “a first signal” and “a second signal” of claim 1. For the purposes of examination, it will be interpreted as including the first and second signals.
Any remaining claims are rejected based on their dependency on a rejected base claim.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claims 1-3, 6, 12, and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over EBM-Pabst (DE 20 2017 107 526 U1, see attached translation) in view of Nystrom et al. (US 2013/0204532 A1).
Regarding claim 1, as best understood, EBM-Pabst discloses a headgear (air cleaning device 1 to be worn on the user’s head) (Figs. 1-3; see translation, abstract) comprising an air purifier (inside headband 2 is a filter in the flow path of fan 3) (Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph), a first sensor, a second sensor (wind detection sensors) (Figs. 1-3; see translation, page 2 fourth paragraph, page 4 first paragraph), and a control unit (control) (Figs. 1-3; page 2 fourth paragraph), wherein the control unit analyses a first signal output by the first sensor and a second signal output by the second sensor to determine a direction of wind, and the control unit controls a flow rate of the air purifier in response to the determined direction of wind (control evaluates the outputs from the wind detection sensors to determine wind direction; based on the wind direction, the fan 3 speed is controlled to counteract the wind influence directionally) (see translation, page 2 fourth and fifth paragraphs, page 4 first paragraph).
EBM-Pabst does not disclose the first sensor and the second sensor are microphones.
However, Nystrom teaches a headset device with wind sensors (Nystrom; abstract) wherein the first sensor and the second sensor are microphones (wind sensors 104-l and 104-r can each include microphones) (Nystrom; Fig. 1; para. [0015]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the EBM-Pabst first sensor and second sensor to be microphones, as taught by Nystrom, for the purpose of providing a specific sensor structure suitable for determining wind speed and direction based on wind noise which one of ordinary skill in the art could feasibly expect to perform reasonably well (Nystrom; paras. [0014-0015]).
Regarding claim 2, as best understood, the modified EBM-Pabst teaches wherein the headgear comprises a further air purifier (inside headband 2 is a filter in the flow path of fan 4) (EBM-Pabst; Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph) and the control unit controls the relative flow rates of the air purifier and the further air purifier in response to the determined direction of wind (control evaluates the outputs from the wind detection sensors to determine wind direction; based on the wind direction, one or both of the fans’ speeds are controlled to counteract the wind influence directionally) (EBM-Pabst; see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph).
Regarding claim 3, as best understood, the modified EBM-Pabst teaches wherein the air purifier is located on a first side of the headgear, the further air purifier is located on a second opposite side of the headgear (fan 3 with a filter is on one side of headband 2, and fan 4 with a filter is on the opposite side of headband 2) (EBM-Pabst; Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph), and the control unit, in response to determining that the direction of wind is from a side of the headgear, increases the relative flow rate of the air purifier located on the opposite, downstream side of the headgear (control evaluates the outputs from the wind detection sensors to determine wind direction; with a wind influence from a side of the device, the speed of one or both of the fans can be increased, thereby including the fan on the opposite side of the wind influence) (EBM-Pabst; see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph).
Regarding claim 6, as best understood, the modified EBM-Pabst teaches wherein the control unit determines the direction of wind based on differences in the first signal and the second signal (wind direction can be determined based on a difference in decibel levels between the sound energy density distributions detected at wind sensors 104-l and 104-r) (Nystrom; para. [0016]).
Regarding claim 12, as best understood, the modified EBM-Pabst teaches wherein the control unit analyses the first signal and the second signal to determine a magnitude of wind, and the control unit controls the flow rate of the air purifier in response to the determined magnitude of wind and the determined direction of wind (control evaluates the outputs from the wind detection sensors to determine wind values such as speed, force, pressure, and direction; the control controls the fan based on these measured wind values) (EBM-Pabst; see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph).
Regarding claim 14, as best understood, the modified EBM-Pabst teaches wherein the headgear comprises a further air purifier (inside headband 2 is a filter in the flow path of fan 4) (EBM-Pabst; Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph) and the control unit controls the relative flow rates of the air purifier and the further air purifier in response to the determined magnitude of wind and the determined direction of wind (control evaluates the outputs from the wind detection sensors to determine wind values such as speed, force, pressure, and direction; the control controls the fans’ speeds based on these measured wind values) (EBM-Pabst; see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph).
Regarding claim 15, as best understood, the modified EBM-Pabst teaches wherein the air purifier is located on a first side of the headgear, the further air purifier is located on a second, opposite side of the headgear (fan 3 with a filter is on one side of headband 2, and fan 4 with a filter is on the opposite side of headband 2) (EBM-Pabst; Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph), and the control unit, in response to determining that the direction of wind is from a side of the headgear, increases the relative flow rate of the air purifier located on the opposite, downstream side of the headgear by an amount defined by the magnitude of the wind (control evaluates the outputs from the wind detection sensors to determine wind values such as speed, force, pressure, and direction; with a wind influence from a side of the device, the flow volume and speed of one or both of the fans can be increased based on the measured wind values, thereby including the fan on the opposite side of the wind influence) (EBM-Pabst; see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph).
Regarding claim 16, the modified EBM-Pabst teaches wherein the headgear comprises a left ear cup and a right ear cup, the left ear cup comprises the first microphone, and the right ear cup comprises the second microphone (EBM-Pabst earphone cushions 8, 9 modified by Nystrom to each respectively have a wind sensor 104-l, 104-r) (EBM-Pabst, Figs. 1-2, see translation, page 3 second-to-last paragraph; Nystrom, Fig. 1, para. [0013]).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over EBM-Pabst in view of Nystrom as applied to claim 2 above, and further in view of Chan (US 2007/0137650 A1).
Regarding claim 4, as best understood, the modified EBM-Pabst teaches the invention as previously claimed including wherein the air purifier generates a first flow of purified air, the further air purifier generates a second flow of purified air (fans 3, 4 with filters would each generate a flow of filtered air) (EBM-Pabst; Figs. 1-3; see translation, abstract, page 3 second-to-last paragraph), but does not teach the first flow and the second flow combine to generate a combined flow of purified air, and the direction of the combined flow is defined by the relative flow rates of the air purifier and the further air purifier.
However, Chan teaches an air purifying breathing apparatus (Chan; abstract) wherein the first flow and the second flow combine to generate a combined flow of purified air (air flows from both left and right filters 4 combine inside air chamber 3 with nozzle 7 and hoses 8 to generate a combined filtered air flow) (Chan; Figs. 1, 3; para. [0037]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the EBM-Pabst device to include an air chamber, nozzle, and hoses, such that the first flow and the second flow combine to generate a combined flow of purified air, as taught by Chan, for the purpose of enabling the filtered flows to travel directly to user’s nose and mouth (Chan; Figs. 1, 3; para. [0037]), thereby helping the user to primarily breath in filtered air.
With this modification, the modified EBM-Pabst would thus teach the direction of the combined flow is defined by the relative flow rates of the air purifier and the further air purifier (in the modified EBM-Pabst, the flows from each EBM-Pabst fan 3, 4 would go through blow-out channels 5, 6, and then combine inside a Chan air chamber 3; the direction of the combined flow inside the air chamber 3 would naturally and inherently be defined by the flow rates from each of the fans 3, 4) (EBM-Pabst, Fig. 1, see translation, page 3 second-to-last paragraph; Chan, Figs. 1 and 3, para. [0037]).
Regarding claim 5, the modified EBM-Pabst teaches wherein the headgear comprises a nozzle having a first inlet for receiving the first flow from the air purifier, a second inlet for receiving the second flow from the further air purifier (intake pipes 1 each receive a flow from a respective filter 4) (Chan; Figs. 1, 3; para. [0037]), and an outlet for discharging the combined flow (the combined air from inside air chamber 3 would flow out of nozzle 7 and/or nose hoses 8 to the user) (Chan; Figs. 1, 3; para. [0037]).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over EBM-Pabst in view of Nystrom as applied to claim 1 above, and further in view of Song et al. (CN 103399173 A, see attached translation).
Regarding claim 10, as best understood, the modified EBM-Pabst teaches the invention as previously claimed, but does not teach wherein the control unit determines a coherence of the first signal and the second signal, and determines the direction of wind based on the coherence.
However, Song teaches an invention for the evaluation of wind speed and wind direction (Song; see translation, abstract) wherein the control unit determines a coherence of the first signal and the second signal, and determines the direction of wind based on the coherence (signals from an array of microphones undergo a coherence evaluation to estimate the wind direction) (Song; see translation, para. [0018]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify EBM-Pabst control unit such that wherein the control unit determines a coherence of the first signal and the second signal, and determines the direction of wind based on the coherence, as taught by Song, for the purpose of enabling the wind speed evaluation to be in real-time and highly-sensitive (Song; see translation, abstract).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over EBM-Pabst in view of Nystrom as applied to claim 16 above, and further in view of Lee (KR 101889372 B1, see attached translation) and Azmi (US 2014/0169579 A1).
Regarding claim 17, the modified EBM-Pabst teaches the invention as previously claimed, but does not teach wherein each ear cup comprises a speaker and an active noise cancellation unit, the active noise cancellation unit of the left ear cup comprises the first microphone, and the active noise cancellation of the right ear cup comprises the second microphone.
However, Lee teaches a headphone type air cleaner (Lee; see translation, abstract) wherein each ear cup comprises a speaker (each earmuff includes a speaker 60) (Lee; Fig. 2; see translation, abstract, page 5 fourteenth paragraph).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the EBM-Pabst ear cups to each comprises a speaker, as taught by Lee, for the purpose of providing a user with music (Lee; see translation, page 5 fourteenth paragraph).
However, EBM-Pabst teaches the headphones can include an active noise suppression device (EBM-Pabst; see translation, page 2 seventh paragraph). Furthermore, Azmi teaches an adaptive noise-cancelling headphone (Azmi; abstract) wherein each ear cup comprises an active noise cancellation unit, the active noise cancellation unit of the left ear cup comprises the first microphone, and the active noise cancellation of the right ear cup comprises the second microphone (the left and right earcups each include an active noise control assembly that operates based on noise detected by a respective ambient microphone 124) (Azmi; Figs. 1A-3; para. [0020]; para. [0028]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the EBM-Pabst active noise suppression device such that each ear cup comprises an active noise cancellation unit, the active noise cancellation unit of the left ear cup comprises the first microphone, and the active noise cancellation of the right ear cup comprises the second microphone, as taught by Azmi, for the purpose of providing each earcup with a specific suitable active noise suppression device which is capable of cancelling noise within an earcup housing (Azmi; para. [0028]).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over EBM-Pabst in view of Nystrom as applied to claim 1 above, and further in view of Azmi.
Regarding claim 18, as best understood, the modified EBM-Pabst teaches the invention as previously claimed, but does not teach wherein the headgear comprises a third microphone and a fourth microphone, the control unit analyses signals output by the four microphones to determine the direction of wind, the first and second microphones are feedforward microphones and the third and fourth microphones are feedback microphones.
However, Azmi teaches an adaptive noise-cancelling headphone (Azmi; abstract) wherein the headgear comprises a third microphone and a fourth microphone, the first and second microphones are feedforward microphones and the third and fourth microphones are feedback microphones (ambient microphones 124 and error microphones 126 for both the left and right earcups are part of a feedback/feedforward active noise control system, where the ambient microphones 124 are feedforward and the error microphones 126 are feedback) (Azmi; Figs. 1A-3; para. [0020]; para. [0028]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the EBM-Pabst headgear to include a third and a fourth microphone, such that the first and second microphones are feedforward microphones and the third and fourth microphones are feedback microphones, as taught by Azmi, for the purpose of provide the device with an active noise control assembly (Azmi; para. [0028]).
With this modification, the modified EBM-Pabst would thus teach the control unit analyses signals output by the four microphones to determine the direction of wind (the modified EBM-Pabst control evaluates the outputs from all the Nystrom and Azmi microphones and uses the information to determine wind direction) (EBM-Pabst, see translation, page 2 second, fourth, and fifth paragraphs, page 4 first paragraph; Nystrom, Fig. 1, para. [0015]; Azmi, Figs. 1A-3, para. [0028]).
Double Patenting
Claims 1, 12, and 16-17 are of this application is patentably indistinct from claims 1, 8, and 15-16 of copending Application No. 17/923,367. Pursuant to 37 CFR 1.78(f), when two or more applications filed by the same applicant or assignee contain patentably indistinct claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application. Applicant is required to either cancel the patentably indistinct claims from all but one application or maintain a clear line of demarcation between the applications. See MPEP § 822.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1, 12, and 16-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, and 15-16 of copending Application No. 17/923,367, hereinafter ‘367, in view of EBM-Pabst.
Regarding claim 1, as best understood, ‘367 discloses a headgear (‘367; claim 1) comprising an air purifier (‘367; claim 1), a first microphone (‘367; claim 1), a second microphone (a further microphone) (‘367; claim 8), and a control unit (‘367; claim 1), wherein the control unit analyses a first signal output by the first microphone and a second signal output by the second microphone to determine wind (control unit analyses the signal output by the microphone and the further signal output by the further microphone to determine wind magnitude) (‘367; claim 8), and the control unit controls a flow rate of the air purifier in response to the determined wind (control unit controls a flow rate of the air purifier in response to the determined wind magnitude) (‘367; claim 1).
Copending application ‘367 does not disclose to determine wind is to determine a direction of wind; and the control unit controls a flow rate of the air purifier in response to the determined direction of wind.
However, EBM-Pabst teaches an air cleaning device (EBM-Pabst; see translation, abstract) wherein to determine wind is to determine a direction of wind; and the control unit controls a flow rate of the air purifier in response to the determined direction of wind (sensor used measure wind to determine wind direction; based on wind direction, the fan speed is controlled to counteract the wind influence directionally) (EBM-Pabst; see translation, page 2 fourth and fifth paragraphs).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the copending application ‘367 to include determining a direction of wind, as taught by EBM-Pabst, for the purpose of allowing for the fans to be controlled to counteract the wind influence directionally (EBM-Pabst; see translation, page 2 fourth and fifth paragraphs).
Regarding claim 12, as best understood, the modified ‘367 teaches wherein the control unit analyses the first signal and the second signal to determine a magnitude of wind (‘367; claim 8), and the control unit controls the flow rate of the air purifier in response to the determined magnitude of wind and the determined direction of wind (‘367 control unit controls the flow rate of the air purifier in response to the determined wind magnitude, and as modified by EBM-Pabst would also control the air purifier in response to wind direction) (‘367, claim 1; EBM-Pabst, see translation, page 2 fourth and fifth paragraphs).
Regarding claim 16, the modified ‘367 teaches wherein the headgear comprises a left ear cup and a right ear cup, the left ear cup comprises the first microphone, and the right ear cup comprises the second microphone (the microphone is provided in the left ear cup, and the further microphone is provided in the right ear cup) (‘367; claim 15).
Regarding claim 17, the modified ‘367 teaches wherein each ear cup comprises a speaker and an active noise cancellation unit (‘367; claim 16), the active noise cancellation unit of the left ear cup comprises the first microphone, and the active noise cancellation of the right ear cup comprises the second microphone (the microphone is of the active noise cancelation unit of the left ear cup, and the further microphone is of the active noise cancelation unit of the right ear cup) (‘367; claim 16).
This is a provisional nonstatutory double patenting rejection.
Allowable Subject Matter
Claims 7-9, 11, and 13 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 7, as best understood, the prior art of record does not disclose nor sufficiently teach wherein the control unit: transforms time samples of the first signal into one or more first frequency samples; transforms time samples of the second signal into one or more second frequency samples; and determines the direction of wind based on energies of the first frequency samples and the second frequency samples.
Regarding claims 8-9, as best understood, these claims are dependent upon claim 7 which was indicated to have allowable subject matter, and thus would also be considered to have allowable subject matter.
Regarding claim 11, as best understood, the prior art of record does not disclose nor sufficiently teach wherein the control unit: transforms time samples of the first signal into one or more first frequency samples; transforms time samples of the second signal into one or more second frequency samples; and determines the direction of wind based on at least two of: the energies of the first frequency samples and/or the second frequency samples; variations in the energies of the first frequency samples and/or the second frequency samples with time; differences in the energies of the first frequency samples and the second frequency samples; and variations in the differences in the energies of the first frequency samples and the second frequency samples.
Regarding claim 13, as best understood, the prior art of record does not disclose nor sufficiently teach wherein the control unit: transforms time samples of the first signal into one or more first frequency samples; transforms time samples of the second signal into one or more second frequency samples; and determines the magnitude of wind and the direction of wind based on energies of the first frequency samples and the second frequency samples.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 5,697,363 by Hart is considered to be relevant as it discloses a headset for the delivery of gas to a user’s nose.
US 2015/0174435 A1 by Jones is considered to be relevant as it discloses a personal air filter device hung on the ear.
US 2017/0361133 A1 by Yu is considered to be relevant as it discloses a wearable device for filtering air that includes an anemometer for determining wind motion.
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/JACQUELINE M PINDERSKI/Examiner, Art Unit 3785
/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785