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 .
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-17, 39-42 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4, 12-15 & 39-42 are rejected under 35 U.S.C. 103 as being unpatentable over Jobani, US Patent Pub. 20150382123 A1, in view of Fei et al, US Patent Pub. 20170104977 A1.
Re Claim 1, Jobani discloses a system, comprising: a server communicatively coupled to a non-transitory computer readable medium containing a three-dimensional earpiece production application code executable to: receive a digitized ear image of an ear (para 0066: 2D digitized images of the ears of the user are captured and uploaded through a website or mobile application); compare said digitized ear image to a plurality of digitized calibration ear images (para 0066: 2D digitized images of the ears of the user are captured and uploaded through a website or mobile application; wherein the system utilizes a photogrammetry process along with a statistical analysis step wherein the uploaded images rea compared against a database of stored plurality of huma ear impressions(naturally selecting the closest ear impression from the database to the uploaded 2D image/photo) so as to overcome any gaps by the photogrammetry analysis of the user’s ear scans; with the systems ultimate goal to generate a 3D ear impression model); select one of said plurality of digitized calibration ear images having the closest dimensional relationships to one or more anatomical features contained in said digitized ear image (para 0066: 2D digitized images of the ears of the user are captured and uploaded through a website or mobile application; wherein the system utilizes a photogrammetry process along with a statistical analysis step wherein the uploaded images rea compared against a database of stored plurality of huma ear impressions(naturally selecting the closest ear impression from the database to the uploaded 2D image/photo) so as to overcome any gaps by the photogrammetry analysis of the user’s ear scans; with the systems ultimate goal to generate a 3D ear impression model). generate an outer ear data model of an outer ear based on selected said digitized ear calibration images (para 0066: 2D digitized images of the ears of the user are captured and uploaded through a website or mobile application; wherein the system utilizes a photogrammetry process along with a statistical analysis step wherein the uploaded images rea compared against a database of stored plurality of huma ear impressions(naturally selecting the closest ear impression from the database to the uploaded 2D image/photo) so as to overcome any gaps by the photogrammetry analysis of the user’s ear scans; with the systems ultimate goal to generate a 3D ear impression model); generate a three-dimensional earpiece data model based on said outer ear data model (para 0066: 2D digitized images of the ears of the user are captured and uploaded through a website or mobile application; wherein the system utilizes a photogrammetry process along with a statistical analysis step wherein the uploaded images rea compared against a database of stored plurality of huma ear impressions(naturally selecting the closest ear impression from the database to the uploaded 2D image/photo) so as to overcome any gaps by the photogrammetry analysis of the user’s ear scans; with the systems ultimate goal to generate a 3D ear impression model); generate a three-dimensional earpiece buildup application executable to operate a material deposition apparatus to build a three-dimensional earpiece based upon said three-dimensional earpiece data model (paras 0052, 0057, 0059-0060, 0068: building the 3D model includes material selection); a client computer communicatively coupled to said server to access said three dimensional earpiece production application code (para 0053: instructions and codes required for 3D modeling also includes codes for materials used for 3D modeling; para 0045: program for 3D modeling stored and processed on server); and a material deposition apparatus communicatively coupled to said server (paras 0052, 0057, 0059-0060, 0068: building the 3D model includes material selection), said three-dimensional earpiece buildup application controls said material deposition apparatus to buildup said three-dimensional earpiece contoured to conformably engage said ear (paras 0052, 0057, 0059-0060, 0068: building the 3D model includes material selection); but fails to explicitly disclose the comparison including pixel to pixel distances between the digitized ear image and the plurality of digitized calibrated ear images. However, Fei et al teaches the concept of outputting 3D calibrated images from 2D images based on the distances of a plurality of pixels where the distances of the pixels would be the same in the outputted 3D calibrated image as that of the 2D image (Fei, para 0054). It would have been obvious to modify the Jobani system such that the calibrated 3D images, especially the ones selected are based on the similarity of pixel distances as taught in Fei et al for the purpose of obtaining a 3D output as close as possible to the 2D image.
Re Claim 2, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said three-dimensional earpiece comprise an ear canal earpiece contoured to conformably engage an ear canal of said ear (Jobani, paras 0007, 0071: ear canal).
Re Claim 3, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said three-dimensional earpiece comprises an auricle earpiece contoured to conformably engage an outer ear of said ear (Jobani, para 0034: outer ear).
Re Claim 4, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said three-dimensional earpiece comprises outer ear earpiece contoured to conformably engage said auricle (Jobani, para 0034: outer ear) and said ear canal of said ear (Jobani, paras 0007, 0071: ear canal).
Re Claim 12, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said three-dimension earpiece comprises an intra-auricular support removably positionable in an auricle of an ear (Jobani, figs. 7A and 7B: the device is disposed in the auricle of the user).
Re Claim 13, the combined teachings of Jobani and Fei et al disclose the system of claim 12, wherein said intra-auricular support further comprises an ear canal earpiece contoured to conformably engage an ear canal of said ear upon positioning said an intra-auricular support in said ear (Jobani, figs, 8A and 8B: demonstrate the ear canal portion and auricular portion of the 3D model).
Claims 14-15 have been analyzed and rejected according to claim 13.
Re Claim 39, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said plurality of digitized calibration ear images have known pixel to pixel distances within each digitized calibration ear image (Fei, para 0054: outputting 3D calibrated images from 2D images based on the distances of a plurality of pixels where the distances of the pixels would be the same in the outputted 3D calibrated image as that of the 2D image).
Re Claim 40, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said ear scanner comprises an inflatable membrane adapted to conform to an ear canal of said ear (Fei et al, para 0060: inflatable membrane).
Re Claim 41, the combined teachings of Jobani and Fei et al disclose the system of claim 40, wherein said ear scanner further comprises a light emitter disposed to illuminate said inflatable membrane interior surface (Fei et al, paras 0060-0062: light illuminated into the inflatable membrane); a fluorescent material disposed on said inflatable membrane interior surface, said fluorescent material emitting fluorescent light at one or more wavelengths (Fei et al, paras 0060-0062: fluorescent material); a detector which generates a signal which varies based on light intensity of said one or more wavelengths of said fluorescent light (Fei et al, paras 0060-0062: detector receives light and light intensity is varied), wherein said three-dimensional earpiece production application code further executable to: process said signal which varies based on light intensity of said one or more wavelengths of said fluorescent light, measure said light intensity of said one or more wavelengths of said fluorescent light (Fei et al, paras 0060-0062: detector receives light and light intensity is varied); and determine a distance from said ear scanner to said inflatable membrane interior surface (Fei et al, paras 0060-0062: detector receives light and light intensity is varied, where the distance is determined accordingly).
Re Claim 42, the combined teachings of Jobani and Fei et al disclose the system of claim 1, wherein said ear scanner comprises an optical coherence tomography device operable to generate said digitized ear image of said ear. Official Notice is taken that the use of an optical coherence tomography is well known. Since Jobani teaches the use of an optical scanner (Jobani, claims 6, 16: optical scanner), it would have been obvious to utilize an optical coherence tomography since an optical coherence tomography is a type of optical scanner for the purpose of utilizing a non-invasive, non-contact imaging test that uses light waves to capture high-resolution, cross-sectional, and 3D images.
Claims 5-11, 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Jobani, US Patent Pub. 20150382123 A1 and Fei et al, US Patent Pub. 20170104977 A1, as applied to claim 1 above, in view of Kirkpatrick, US Patent Pub. 20130216086. (The Kirkpatrick reference is cited in IDS filed 10/05/2023)
Re Claim 5, the combined teachings of Jobani and Fei et al disclose the system of claim 1, but fail to explicitly disclose wherein said three-dimension earpiece further comprises a passage open between a first location and a second location on said external surface of said three-dimensional earpiece, said passage configured to retain an in-ear device. However, Kirkpatrick discloses a detachable, moldable conduit retention mechanism for an in ear canal audio device (Kirkpatrick, figs. 1-3: discloses a sound delivery element/conduit 21 removably placed within earpiece 20, which has moldable characteristics (abstract: “the earpiece heatable to achieve a moldable condition which allows reconfiguration of the external surface by engagement with the outer ear to dispose the external surface in a second fixed configuration in greater conformity to the outer ear.”)). Since both Jobani and Kirkpatrick discloses an ear canal audio device, it would have been obvious to utilize the design suggestion of utilizing moldable retention material of Kirkpatrick for the purpose of been securely, comfortably and effectively hold the device within the canal.
Claims 6-7 have been analyzed and rejected according to claim 5.
Re Claim 8, the combined teachings of Jobani, Fei et al and Kirkpatrick disclose the system of claim 7, wherein said earpiece in said moldable condition engaged with said auricle of said ear curable to dispose said external surface of said earpiece in a fixed configuration, said conduit maintaining said conduit internal surface to releasably retain said in-ear device (Kirkpatrick, abstract: “the earpiece heatable to achieve a moldable condition which allows reconfiguration of the external surface by engagement with the outer ear to dispose the external surface in a second fixed configuration in greater conformity to the outer ear.”; para 0036: “The earpiece (1) can be heated to achieve a moldable condition (10) which allows reconfiguration of the external surface (2) by engagement within the outer ear (4) and can be cooled while engaged with the outer ear (4) to dispose the external surface (2) in a second fixed configuration (11) conformed more closely to the configuration of the outer ear (4)”, figs. 1-3: the nozzle 21 is solid and obviously would retain its form while the ear mold is going through transformation).
Claim 9 has been analyzed and rejected according to claim 8.
Re Claim 10, the combined teachings of Jobani, Fei et al and Kirkpatrick disclose the system of claim 9, wherein said material deposition apparatus operates to buildup said three-dimensional earpiece with a build material selected from the group consisting of: polycaprolactone, ethylvinylacetate, polylactic acid, and combinations thereof (Kirkpatrick, paras 0038-0039).
Re Claim 11, the combined teachings of Jobani and Fei et al disclose the system of claim 1, but fail to explicitly disclose wherein said material deposition apparatus operates to buildup said three-dimensional earpiece with a build material selected from the group consisting of: thermoplastic elastomer, thermoplastic urethane, polycaprolactone, ethylvinylacetate, polylactic acid, and combinations thereof. However, Kirkpatrick teaches a material deposition apparatus that operates to buildup three-dimensional earpiece with a build material selected from the group consisting of: thermoplastic elastomer, thermoplastic urethane, polycaprolactone, ethylvinylacetate, polylactic acid, and combinations thereof (Kirkpatrick, paras 0038-0039). It would have been obvious to modify Jobani system by including said material deposition apparatus operates to buildup said three-dimensional earpiece with a build material selected from the group consisting of: thermoplastic elastomer, thermoplastic urethane, polycaprolactone, ethylvinylacetate, polylactic acid, and combinations thereof as taught by Kirkpatrick for the purpose of providing moldable earpiece which retains conventional in ear devices.
Re Claim 16, the combined teachings of Jobani and Fei et al disclose the system of claim 14, wherein said intra-auricular support further comprises an intra-auricular support conduit outwardly extending from said intra-auricular support (Jobani, figs. 8A, 8B: demonstrates the each canal portion and auricular portion of the 3D model); but fails to explicitly disclose said intra-auricular support conduit having an external surface engaged by said auricular earpiece, and have an internal surface defining a passage open at opposite conduit ends. However, Kirkpatrick discloses a detachable, moldable conduit retention mechanism for an in ear canal audio device (Kirkpatrick, figs. 1-3: discloses a sound delivery element/conduit 21 removably placed within earpiece 20, which has moldable characteristics (abstract: “the earpiece heatable to achieve a moldable condition which allows reconfiguration of the external surface by engagement with the outer ear to dispose the external surface in a second fixed configuration in greater conformity to the outer ear.”)). Since both Jobani and Kirkpatrick discloses an ear canal audio device, it would have been obvious to utilize the design suggestion of utilizing moldable retention material of Kirkpatrick for the purpose of been securely, comfortably and effectively hold the device within the canal.
Claim 17 has been analyzed and rejected according to claim 16.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/GEORGE C MONIKANG/Primary Examiner, Art Unit 2692 1/30/2026