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 .
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.
Response to Arguments
Applicant's arguments filed March 9, 2026 have been fully considered but they are not persuasive.
Regarding the 101: Applicant has amended claim 1 to include specifically adjusting operation of a hearing device, which integrates the abstract idea into a practical application. Examiner notes that claim 17 was not amended in a similar manner and instead recites ‘adjust settings associated with the hearing device’ which does not mean that the hearing device even is adjusted at all. Merely settings associated with are adjusted which could include a prescription for settings to be used. The claim does not require the hearing device to be adjusted at all and thus claim 17 remains rejected under 101 for reciting an abstract idea without significantly more.
Regarding the 103: Examiner notes that claim 1 states: “adapting the first set of response options to a second set of response options for use during one or more second loudness scaling tests based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests.” And claim 17 states: “adapt the first set of loudness indicators to a second set of loudness indicators for use in one or more second loudness scaling tests based on the results of the one or more first loudness scaling tests.” (emphasis added). The claim uses the term ‘based on’ which is broad and does not imply any specific relationship. The claim can be read that so long as indications of the user’s perceived loudness are received at all, the adapting of the first set of response to a second set of responses merely means moving to a different scale of responses. The claims do not require any specific adaptation due to any specific action. Rather the claim is broadly claimed such that Brand still meets the claim limitations as show in the rejections below. Should Applicant intend for a more specific relationship than that should be amended into the claims rather than relying on the broad ‘adapt’ and ‘based on’. Applicant should amend to include the specific adaptation and what they intend for ‘based on’ to mean.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “second sounds delivered to an ear of a user via a hearing device during one or more second loudness scaling tests have a different level of loudness precision or frequency precision than the first sounds delivered to the ear of the user via the hearing device during the one or more first loudness scaling tests”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The claims themselves do not relate the loudness precision or frequency precision to the sounds specifically. Merely the overall test and as the precision of the indicators of Brand changes thus that meets the claim limitations. Regardless in light of the amendments the previously provided Chen reference is also used to teach the claim limitations.
Response to Amendment
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(s) 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(s) is/are:
-‘hearing device’ in claim 1 interpreted to be, per Paragraphs 0024 and 0042 of the specification, “an auditory prosthesis, such as a hearing aid, cochlear implant, bone conduction device (e.g., percutaneous bone conduction device, transcutaneous bone conduction device, active bone conduction device, passive bone conduction device, etc.)” and a microphone and equivalents thereof.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are 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/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 17-30 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1
The claimed invention in claims 17-30 are directed to statutory subject matter as the claims recites methods (claims 17-30) for performing loudness scaling tests..
Step 2A, Prong One
Regarding claims 17-30, the recited steps are directed mental process of performing concepts in a human mind or by a human using a pen and paper (see MPEP 2106.04(a)(2) subsection (III)) and certain methods of organizing human activity of managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions) (see MPEP 2016.04(a)(2) subsection (II)).
Specifically Independent claim 17 recites:
display…a first set of loudness indicators;
perform one or more first loudness scaling tests during which first sounds are delivered to a user of a hearing device;
obtain results of the one or more first loudness scaling tests via the first set of loudness indicators;
adjust settings associated with the hearing device based on the results of the one or more first loudness scaling tests; and
adapt the first set of loudness indicators to a second set of loudness indicators for use in one or more second loudness scaling tests based on the results of the one or more first loudness scaling tests.
These limitations describe a mental process (including an observation, evaluation, judgment, opinion) under the broadest reasonable standard, as a skilled practitioner is capable of performing the recited limitations and making a mental assessment thereafter. Examiner notes that nothing from the claims suggests that the limitations cannot be practically performed by a medical, biomedical or engineering professional with the aid of a pen and paper; their knowledge gained from education, background, or experience; or by using a generic computer as a tool to perform mental process steps in real time. Examiner additionally notes that nothing from the claims suggests and undue level of complexity that the mental process steps cannot be practically performed by a human with the aid of a pen and paper, or using a generic computer as a tool to perform the mental process steps. Adjusting settings is akin to providing a prescription which would be an abstract idea. The claim doesn’t require any particular settings nor does claim require the hearing aid itself to be adjusted. Settings associated with the hearing device is broad and does not reflect anything beyond a mental process.
Examples of ineligible claims that recite mental processes include:
• a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group, LLC v. Alstom, S.A.;
• claims to “comparing BRCA sequences and determining the existence of alterations,” where the claims cover any way of comparing BRCA sequences such that the comparison steps can practically be performed in the human mind, University of Utah Research Foundation v. Ambry Genetics Corp.
• a claim to collecting and comparing known information, which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC.
See p. 7-8 of October 2019 Update: Subject Matter Eligibility.
The limitations further describe certain methods of organizing human activity in that the limitations cover managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions). Administering a test would fall under this grouping.
Step 2A, Prong Two
This judicial exceptions (abstract ideas) in claims 17-30 are not integrated into a practical application because:
•The abstract idea amounts to simply implementing the abstract idea on a computer. For example, the recitations regarding the generic computing components for receiving and adapting merely invoke a computer as a tool.
•The data-gathering step (obtain) do not add a meaningful limitation to the method as they are insignificant extra-solution activity.
•There is no improvement to a computer or other technology. “The McRO court indicated that it was the incorporation of the particular claimed rules in computer animation that "improved [the] existing technological process", unlike cases such as Alice where a computer was merely used as a tool to perform an existing process.” MPEP 2106.05(a) II. The claims recite a computer that is used as a tool for display, perform(ing), providing, receiving, obtain, and adapt(ing)).
•The claims do not apply the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition. Rather, the abstract idea is utilized to determine a relationship among data to provide a medical measurement.
•The claims do not apply the abstract idea to a particular machine. “Integral use of a machine to achieve performance of a method may provide significantly more, in contrast to where the machine is merely an object on which the method operates, which does not provide significantly more.” MPEP 2106.05(b). II. “Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not provide significantly more.” MPEP 2106.05(b) III. The pending claims utilize a computer to perform the abstract ideas. The claims do not apply the obtained response measurement to a particular machine. Rather, the data is merely output in a post-solution step.
When considered in combination, the additional elements (i.e. the generic computer functions and conventional equipment/steps) do not amount to significantly more than the abstract idea. Looking at the claim limitations as a whole adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Step 2B
The additional elements are identified as follows:
-‘a hearing device’ in claim 17
-‘display screen’ in claims 17 and 29
-‘non-transitory computer readable storage media’ in claim 17
-‘at least one processor’ in claim 17
Those in the relevant field of art would recognize the above-identified additional elements as being well-understood, routine, and conventional means for data-gathering and computing, as demonstrated by
Applicant’s Specification (Paragraph 0002) for the hearing device
Applicant's specification (Paragraphs 00104-00106) which discloses that the display, processor, and memory comprise generic computer components that are configured to perform the generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry
The prior art provided by the Applicant in the IDS and by the Examiner in PTO-892 which disclose each of the elements as being known and conventional in the art elements;
Thus, the claimed additional elements “are so well-known that they do not need to be described in detail in a patent application to satisfy 35 U.S.C. § 112(a).” Berkheimer Memorandum, III. A. 3. Furthermore, the court decisions discussed in MPEP § 2106.05(d)(ll) note the well-understood, routine and conventional nature of such additional elements as those claimed. See option III. A. 2. in the Berkheimer memorandum.
The hearing device merely indicates field of use. Use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception into a practical application or provide significantly more. See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011). See MPEP 2106.05(b).
Regarding the dependent claims, the dependent claims are directed to either 1) steps that are also abstract or 2) additional data output that is well-understood, routine and previously known to the industry or 3) further recite additional elements at a high level of generality which are conventional in the art.
Claims 18-30 are steps that are also abstract as a mental process through additional data gathering or analysis or are steps that further define the managing of personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions)
Although the dependent claims are further limiting, they do not recite significantly more than the abstract idea. A narrow abstract idea is still an abstract idea and an abstract idea with additional well-known equipment/functions is not significantly more than the abstract idea.
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.
Claim(s) 1, 2, 4, 7-10, and 12-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vanpoucke (US 2016/0337768) in view of Brand (Reference U on PTO-892; 2007).
Regarding claim 1, Vanpoucke teaches a method (Abstract), comprising:
performing one or more first loudness scaling tests during which first sounds are delivered to an ear of a user via a hearing device (Paragraph 0045; ‘diagnostic loudness scaling test can be executed utilizing the fitting system 306’);
adjusting operating of the hearing device based on the indications of the user’s perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Paragraph 0060; “which entails creating a map (e.g., a new map) for the hearing prosthesis based on the obtained data obtained in method action 610 by adjusting at least one of the respective current levels based on data of a respective perceived loudness correlated to another current level different from the respective current level.”).
Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test.
Brand teaches during the one or more first loudness scaling tests, providing the user with a first set of response options (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories.’);
receiving, via the first set of response options, indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories.’); and
adapting the first set of response options to a second set of response options for use during one or more second loudness scaling tests based on the indication of the user’s perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Page 1, Introduction; ‘Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’).
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 2, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein adapting the first set of response options to a second set of response options for use during one or more second loudness scaling tests comprises: increasing a level of precision in possible response options from a first precision level provided by the first set of response options to a second precision level provided by the second set of response options (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 4, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the first set of response options include a first number of possible responses and the second set of response options include a second number of possible responses, wherein the second number of possible responses is larger than the first number of possible responses (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 7, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more second loudness scaling tests include a greater level of loudness precision than a level of loudness precision included in the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 8, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches further comprising: adapting the level of loudness precision included in the one or more first loudness scaling tests to the greater level of loudness precision included in the one or more second loudness scaling tests based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 9, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more second loudness scaling tests include a greater level of frequency precision than a level of frequency precision included in the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 10, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches further comprising: adapting the level of frequency precision included in the one or more first loudness scaling tests to the greater level of frequency precision included in the one or more second loudness scaling tests based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 12, Vanpoucke teaches further comprising: setting one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Paragraph 0038; ‘More specifically, in at least some embodiments, stimulation channel electrode current levels are adjusted by an audiologist based on threshold and comfort levels.’)
Regarding claim 13, Vanpoucke teaches further comprising: setting one or more loudness growth functions associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Paragraph 0048).
Regarding claim 14, Vanpoucke teaches further comprising: performing the one or more loudness scaling tests during which the sounds are delivered to the ear of the user via the hearing device (Paragraph 0045; ‘diagnostic loudness scaling test can be executed utilizing the fitting system 306’);
Vanpoucke is silent on the second loudness scaling test.
Brand teaches performing the one or more second loudness scaling tests during which the second sounds are delivered to the ear of the user, during the one or more second loudness scaling tests, providing the user with the second set of response options (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’); and
receiving, via the second set of response options, indications of the user's perceived loudness of the sounds delivered to the user during the one or more second loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’).
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 15, Vanpoucke teaches further comprising: determining one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Paragraphs 0070-0071); and
adjusting the one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the second sounds delivered to the user during the one or more second loudness scaling tests (Paragraphs 0070-0071; this is in combination with Brand which more specifically teaches the second loudness scaling test as shown in the rejection for claims 1 and 14 above).
Regarding claim 16, Vanpoucke teaches further comprising: determining one or more loudness growth functions associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the first sounds delivered to the user during the one or more first loudness scaling tests (Paragraph 0048); and
adjusting the one or more loudness growth functions associated with the user's use of the hearing device based on the indications of the user's perceived loudness of the second sounds delivered to the user during the one or more second loudness scaling tests (Paragraph 0048; this is in combination with Brand which more specifically teaches the second loudness scaling test as shown in the rejection for claims 1 and 14 above).
Claim(s) 3 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vanpoucke (US 2016/0337768) in view of Brand (Reference U on PTO-892; 2007) and in further view of Latzel (US 2010/0254538).
Regarding claim 3, Vanpoucke is silent on the decreasing level of precision for the second test. Latzel teaches wherein adapting the first set of response options to a second set of response options for use during one or more second loudness scaling tests comprises: decreasing a level of precision in possible response options from a first precision level provided by the first set of response options to a second precision level provided by the second set of response options (Figure 2; Paragraphs 0038-0039). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Latzel because it enables binaural adjustment of hearing aids separately for each ear (Paragraph 0038 of Latzel).
Regarding claim 5, Vanpoucke is silent on the decreasing level of precision for the second test. Latzel teaches wherein the first set of response options include a first number of possible responses and the second set of response options include a second number of possible responses, wherein the second number of possible responses is smaller than the first number of possible responses (Figure 2; Paragraphs 0038-0039). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Latzel because it enables binaural adjustment of hearing aids separately for each ear (Paragraph 0038 of Latzel).
Claim(s) 6 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vanpoucke (US 2016/0337768) in view of Brand (Reference U on PTO-892; 2007) and in further view of Chen (US 2016/0338622).
Regarding claim 6, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein a first loudness precision associated with the one or more second loudness scaling tests is different than a second loudness precision associated with the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Chen also discloses wherein a first loudness precision associated with the one or more second loudness scaling tests is different than a second loudness precision associated with the one or more first loudness scaling tests (Paragraphs 0037-0040 and 0053-0058). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it allows for detection of different perceptual maximum sound levels from the subject across all test frequencies (Paragraph 0008 of Chen).
Regarding claim 11, Vanpoucke is silent on the use of a display screen for the response options. Chen teaches wherein providing the user with the first set of response options comprises: displaying the first set of response options at a display screen of a computing device (Paragraph 0036; Figure 4; “FIG. 4 is a schematic diagram to display the loudness options at the user interface. The subject in the hearing test responds to the test sound corresponding to the test frequency band m at the user interface 20 in FIG. 3 or FIG. 4 by choosing the musical instruments or loudness option”). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it would be implementing answering questions of a user interface which is conventional in the art and would yield predictable results and it allows for automatic saving of the user’s response in conjunction with the test results and sounds levels (Paragraph 0036 of Chen).
Claim(s) 17-18, 20, and 22-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vanpoucke (US 2016/0337768) in view of Brand (Reference U on PTO-892; 2007) and Chen (US 2016/0338622).
Regarding claim 17, Vanpoucke teaches one or more non-transitory computer readable storage media comprising instructions that, when executed by at least one processor (Abstract; Paragraph 0040), are operable to:
Vanpoucke is silent on the display screen for the loudness indicators.
Chen teaches display, via a display screen, a first set of loudness indicators (Paragraph 0036; Figure 4; “FIG. 4 is a schematic diagram to display the loudness options at the user interface. The subject in the hearing test responds to the test sound corresponding to the test frequency band m at the user interface 20 in FIG. 3 or FIG. 4 by choosing the musical instruments or loudness option”).
Vanpoucke teaches perform one or more first loudness scaling tests during which first sounds are delivered to a user of a hearing device (Paragraph 0045; ‘diagnostic loudness scaling test can be executed utilizing the fitting system 306’);
adjust settings associated with the hearing device based on the results of the one or more first loudness scaling tests (Paragraph 0060; “which entails creating a map (e.g., a new map) for the hearing prosthesis based on the obtained data obtained in method action 610 by adjusting at least one of the respective current levels based on data of a respective perceived loudness correlated to another current level different from the respective current level.”); and
Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test.
Brand teaches obtain results of the one or more first loudness scaling tests via the first set of loudness indicators (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories.’); and
adapt the first set of loudness indicators to a second set of loudness indicators for use in one or more second loudness scaling tests based on the results of the one or more first loudness scaling tests (Page 1, Introduction; ‘Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’).
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it would be implementing answering questions of a user interface which is conventional in the art and would yield predictable results and it allows for automatic saving of the user’s response in conjunction with the test results and sounds levels (Paragraph 0036 of Chen).
Regarding claim 18, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the second set of loudness indicators provide a greater level of precision in a perceived loudness than a level of precision in a perceived loudness provided by the first set of loudness indicators (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 20, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the first set of loudness indicators include a first number of loudness indicators and the second set of loudness indicators include a second number of loudness indicators, wherein the second number of loudness indicators is larger than the first number of loudness indicators (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 22, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more first loudness scaling tests are performed using a first level of loudness precision and the one or more second loudness scaling tests are performed using a second level of loudness precision that is different than the first level of loudness precision (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Chen also discloses wherein the one or more first loudness scaling tests are performed using a first level of loudness precision and the one or more second loudness scaling tests are performed using a second level of loudness precision that is different than the first level of loudness precision (Paragraphs 0037-0040 and 0053-0058). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it allows for detection of different perceptual maximum sound levels from the subject across all test frequencies (Paragraph 0008 of Chen).
Regarding claim 23, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more first loudness scaling tests are performed using a first level of loudness precision and the one or more second loudness scaling tests are performed using a second level of loudness precision that is greater than the first level of loudness precision (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 24, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches further comprising instructions operable to: adapt the first level of loudness precision to the second level of loudness precision based on the results of the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’; change in scale constituting adaptation). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 25, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more first loudness scaling tests are performed using a first level of frequency precision and the one or more second loudness scaling tests are performed using a second level of frequency precision that is different than the first level of frequency precision (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’; different subdivisions means the frequency precision is different). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Chen also discloses wherein the one or more first loudness scaling tests are performed using a first level of frequency precision and the one or more second loudness scaling tests are performed using a second level of frequency precision that is different than the first level of frequency precision (Paragraphs 0037-0040 and 0053-0058). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it allows for detection of different perceptual maximum sound levels from the subject across all test frequencies (Paragraph 0008 of Chen).
Regarding claim 26, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches wherein the one or more first loudness scaling tests are performed using a first level of frequency precision and the one or more second loudness scaling tests are performed using a second level of frequency precision that is greater than the first level of frequency precision (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’; more subdivisions means an increased precision). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 27, Vanpoucke is silent on the multiple scaling tests with response options that change based on the first test. Brand teaches further comprising instructions operable to: adapt the first level of frequency precision to the second level of frequency precision based on the results of the one or more first loudness scaling tests (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’; change in scale constituting adaptation). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
Regarding claim 28, Vanpoucke teaches further comprising instructions operable to: determine one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the results of the one or more first loudness scaling tests (Paragraph 0038; ‘More specifically, in at least some embodiments, stimulation channel electrode current levels are adjusted by an audiologist based on threshold and comfort levels.’)
Regarding claim 29, Vanpoucke is silent on the displaying of the loudness indicators and the use of a second set of indicators and testing.
Chen teaches further comprising instructions operable to:
display, via the display screen, the second set of loudness indicators (Paragraph 0036; Figure 4).
Vanpoucke teaches perform the one or more loudness scaling test during which sounds are delivered to the user of the hearing device (Paragraph 0045); and
Vanpoucke is silent on the at least one additional loudness scaling test.
Brand teaches perform the one or more second loudness scaling test during which the second sounds are delivered to the user, and obtain results of the one or more second loudness scaling tests via the second set of loudness indicators (Page 1, Introduction; ‘In the first step, the subject scaled the loudness of the stimulus roughly using a verbal scale with five categories. Afterwards, the stimulus was presented again at the same level and the subject used a subscale with 10 fine subdivisions.’).
In combination Vanpoucke teaches providing the loudness scaling tests to a user via a hearing device, Brand teaches the two sets of loudness indicators and Chen teaches these indicators specifically being displayed on a screen thus in combination meeting the claim limitation.
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Brand because Brand teaches this as a known in the art procedure still regarded as the ‘Gold Standard’ of loudness scaling (Introduction of Brand) and allows for more precision in scaling the loudness of a stimulus (Introduction of Brand).
It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke in view of Brand with Chen because it would be implementing answering questions of a user interface which is conventional in the art and would yield predictable results and it allows for automatic saving of the user’s response in conjunction with the test results and sounds levels (Paragraph 0036 of Chen).
Regarding claim 30, Vanpoucke teaches further comprising: determine one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the results of the one or more first loudness scaling tests Paragraphs 0070-0071); and
adjust the one or more threshold levels or one or more comfort levels associated with the user's use of the hearing device based on the results of the one or more second loudness scaling tests (Paragraphs 0070-0071; this is in combination with Brand which more specifically teaches the second loudness scaling test as shown in the rejection for claims 17 and 29 above).
Claim(s) 19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vanpoucke (US 2016/0337768) in view of Brand (Reference U on PTO-892; 2007) and Chen (US 2016/0338622) and in further view of Latzel (US 2010/0254538)
Regarding claim 19, Vanpoucke is silent on the decreasing level of precision for the second test. Latzel teaches wherein the second set of loudness indicators provide a reduced level of precision in a perceived loudness than a level of precision in a perceived loudness provided by the first set of loudness indicators (Figure 2; Paragraphs 0038-0039). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Latzel because it enables binaural adjustment of hearing aids separately for each ear (Paragraph 0038 of Latzel).
Regarding claim 21, Vanpoucke is silent on the decreasing level of precision for the second test. Latzel teaches wherein the first set of loudness indicators include a first number of possible indicators and the second set of loudness indicators include a second number of possible indicators, wherein the second number of possible indicators is smaller than the first number of possible indicators (Figure 2; Paragraphs 0038-0039). It would have been obvious to one of ordinary skill in the art to have modified Vanpoucke with Latzel because it enables binaural adjustment of hearing aids separately for each ear (Paragraph 0038 of Latzel).
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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/PATRICK FERNANDES/Primary Examiner, Art Unit 3791
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