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 .
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.
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: “sound reproducing device” in claim 3; “an ABR testing device” in claim 14; and “sound conduction device” in claim 16.
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.
According to the specification, both the sound reproducing device and sound conduction device are any of earphones, headphones, or speakers. According to the specification, the ABR testing device is a device that comprises stimuli presentation circuitry, data acquisition circuitry coupled to at least one sensor, and a computer.
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 § 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 1-23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, it is unclear what is meant by “fitting a model to at least the first ABR signals, including determining one or more parameters for the model, to provide a fitted model”. As best understood by a reading of the specification, “fitting a model” includes generating one or more predicted ABR waveforms (see sections [0043-0045] and [0080] of the published specification: “Generally, the process of fitting the model may include generating one or more predicted ABR waveforms.”; “For example, fitting the model may generate predicted ABR signals across time that are associated with different stimulus frequencies and/or levels.”; “In some examples, in order to fit the model (e.g. in order to generate one or more predicted ABR signals), the processor 104 may calculate covariance between pairs of variables.”; “In this manner, some ABR signals may be received responsive to stimuli, and other ABR signals may be predicted by fitting a model to the received data.”). This is the interpretation that will be used throughout the examination of the claims. The same indefiniteness issue and interpretation also apply to claims 2, 14, 19, and 20. It is also unclear how fitting an already determined model would include determining one or more parameters for that model.
Regarding claim 5, the phrase “the additional ABR signals generated using the fitted model” lacks proper antecedent basis. There is no previous recitation of additional ABR signals being generated using the fitted model. Claim 4 recites that the fitted model is used to predict amplitudes of additional ABR signals, not to generate the additional ABR signals.
Regarding claims 7, it is unclear if the phrase “the model” is referring to the “a model” recited in line 5 of claim 1, or to the “fitted model” in line 6 of claim 1. Clarification is requested.
Regarding claim 18, the claim is indefinite in that it recites a limitation that is broader than its corresponding limitation in claim 17. Claim 17 recites that the data acquisition circuitry is configured to generate the first ABR signals. Claim 18 recites that the at least one sensor or the data acquisition circuitry or both are configured to generate the first ABR signals. A dependent may not recite a broader limitation than a claim upon which it depends.
Claims not explicitly rejected above are rejected due to their dependence on a rejected base claim.
Examiner’s Note
The following is a reason for the lack of prior art rejections against the claims:
Regarding claims 1, 14, and 19, as it remains unclear what it means to “fit a model to signals to provide a fitted model”, and how fitting an already determined model would include determining one or more parameters for that model, no art was found to read on the corresponding limitations in each of the claims.
Response to Arguments
Applicant's arguments filed 30 March 2026 have been fully considered.
Regarding the rejections of the claims under 35 U.S.C. 112(b), while the amendments have overcome some of the previous rejections, as discussed in paragraph 5 above, indefiniteness issues remain. With specific regard to claims 1, 14, and 19, it remains unclear what is meant by “fitting a model to at least the first ABR signals… to provide a fitted model”. Applicant’s statement that “an output of the recitation ‘fitting a mode’ in claim 1 is the provision of ‘a fitted model.’ does not clarify what it means to fit a model to signals to provide a fitted model. As noted in paragraph 5 above, the specification does not make clear what it means to fit a model to signals to provide a fitted model. Several excerpts from the published specification were provided in paragraph 5 above that imply that “fitting a model to at least the first ABR signals” results in the generation of one or more predicted ABR signals, not a fitted model. It remains entirely unclear what the provided “fitted model” in the claims is, and Applicant’s filed Remarks have not clarified what the fitted model is or how fitting a model to ABR signals would result in a fitted model.
Regarding the rejections of claims 16 and 18 under 35 U.S.C. 101, the amendments to the claims have obviated the rejections.
Regarding the rejections of the claims under 35 U.S.C. 102 as being anticipated by De Vries, while no art is being applied to the claims because of the indefiniteness issues present within the claims, it is again noted that as best understood by the specification, “fitting a model to at least first ABR signals” is a step of fitting a Gaussian process to received ABR signals to generate predicted ABR signals. De Vries teaches fitting a Gaussian process to received ABR signals to generate predicted ABR signals. Sections [0055-0062] of De Vries disclose fitting a Gaussian process to data Dn. Section [0065] states that Dn is audiometric observations, sections [0018] and [0117] teach that the audiometric observations may include “an electric signal in/from the brain” or a “response in the form of electrical potentials related to the brain”, and section [0010] teaches that ABR signals are a type of response in the form of electrical potentials related to the brain. These sections, taken in combination, teach fitting a Gaussian process to ABR signals, wherein the result of the fitting is a “fitted model”. Section [0070] discloses that the fitted model is used to generate predicted hearing thresholds across a range of frequencies and uncertainty associated with the predicted hearing thresholds (see steps 6-9, and sections [0087-0089]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. De Vries et al.’128 (US Pub No. 2010/0257128 – previously cited), as discussed in the Non-Final Rejection mailed out 29 December 2025, is the closest prior art. Van Hek et al.’486 (US Pub No. 2011/0301486 – previously cited) discloses a method and system for predicting hearing thresholds based on ABR analysis. Lunner et al.’128 (US Pub No. 2013/0101128 – previously cited) discloses a method and system for predicting hearing thresholds based on ABR analysis. Hua et al.’631 (US Pub No. 2022/0183631 – previously cited) discloses a method and system for predicting hearing thresholds based on ABR analysis. Neely et al.’379 (USPN 5,697,379 – previously cited) discloses a method and system for predicting hearing thresholds based on ABR analysis wherein a plurality of stimuli are presented to a user. Song et al. (Fast, Continuous Audiogram… – previously cited) teaches the subject matter recited in claims 6-13.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ETSUB D BERHANU whose telephone number is (571)270-5410. The examiner can normally be reached Mon-Fri 9:00am-5:30pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson can be reached at (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ETSUB D BERHANU/Primary Examiner, Art Unit 3791
Prosecution Insights