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 . Claims 1-20 are currently pending, with claims standing as withdrawn 4, 6-10, 14, and 17-20.
Election/Restrictions
The claims that stand as withdrawn are believed to be incorrect. Claims 4, 6-10, 14, and 17-20 are withdrawn as they only appear in non-elected Figures 14-21. The remaining claims (examined below) are drawn to elected Figures 1-13. Claim 4 is directed to Figures 29-30, claims 6-7 to Figures 14+, with claim 8 being drawn to Figures 19+, claims 9-10 to Figures 20-21, claim 10 also to Figures 26-28, claim 14 to Figure 19, claim 17 to Figures 14+, and claims 18-90 are drawn to Figures 20-21. The other claims (1-3, 5, 11-13, 15-16). The Applicant’s traversal was not accompanied by arguments, and as such is being treated as an election made without traverse, see MPEP 818.01. “The absence of any statement indicating whether the requirement to restrict is traversed or the failure to provide reasons for traverse will be treated as an election without traverse”.
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.
Claim 5 is 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 5 recites that the resilient lobe comprises a “shell-shaped portion” it is unclear what shell-shaped actually encompasses. That could include a sphere (sea urchin shell), it could be oval, elliptical or dome shaped (turtle shell), or the shaping could be similar to that of a bivalve (half or whole shell) as three examples that are not terribly close to another of over 100 thousands species.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 5, and 11-12 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Qian et al. US Patent 9,699,546 (hereinafter Qian).
Regarding Claim 1, Qian discloses an ear-worn hearing device comprising a body portion (202) comprising a sound-producing transducer (speaker 212) acoustically coupled to a sound passage of a nozzle (protrusion 203, column 5, lines 55-57); a physiological or activity sensor (sensor 204, see also column 5 lines 60-65) located at a side of the body portion (sensor 204, column 1 lines 38-40); and a first resilient lobe replaceably assembled to the body portion (compliant member 220, see column 7 lines 46–50), wherein the first resilient lobe biases the physiological sensor toward ear tissue when the hearing device is worn on or at least partially in the ear (resilient lobe 220 connected to housing 202 of earbud 300 is compressed between tragus 304 and concha 306 of the ear, thereby preventing earbud 300 from being dislodged from the ear and maintaining a consistent amount of pressure sufficient to keep sensor 204 consistently engaged in interference region 302, column 8 lines 7–12). In the later dependent claims this resilient lobe would be either 702, 902, all of which perform this functional language.
Regarding Claim 2, Qian discloses the first resilient lobe protruding from a side of the body portion opposite the side at which the sensor is located (compliant member 220 engaging the concha, the surface of the ear opposite the tragus where sensor 204 is located, such that the sensor is pressed toward the tragus, column 5 lines 33-46, column 8 lines 1-12; Figure 3B), wherein the first resilient lobe is flexible relative to the body portion (compliant member 220, column 5 lines 44-46, and can be made from open-cell foam, thermoplastic elastomers (TPE), see column 7 lines 53-56).
Regarding Claim 5, Qian discloses a first resilient lobe comprising a shell-shaped portion assembled proximate the nozzle (compliant member 220 of Figure 4A is shown as a resilient body member coupled to the exterior of housing 202 at the end proximate the nozzle/speaker opening; column 7 lines 37-52, this is shell shaped in that it is akin to Scaphopoda/tusk shells). The compliant member is described as a foam or elastomeric body deformably received within a channel of housing 202 adjacent the first end, and constitutes a shell-shaped portion in the sense of a deformable member closing the concha-facing side of the housing proximate the nozzle.
Regarding Claim 11, Qian discloses the side of the body portion at which the sensor is located comprising a convex contour (Figure 3A depicts sensor 204 arranged along the rounded, convex exterior of housing 202 at the end proximate the nozzle, pressing against the interior facing surface of the tragus; see column 5 lines 48-49), wherein the resilient lobe biases the sensor at the convex contour toward the ear tissue (sensor 204 can be placed in contact with a tragus of the ear, see column 5 lines 62–65, and that housing 202 of earbud 300 is compressed between tragus 304 and concha 306 maintaining consistent pressure on the sensor; column 8, lines 7–12).
Regarding Claim 12, Qian discloses a second resilient lobe assembled to a portion of the body portion opposite the nozzle (Figure 7A discloses the first resilient lobe working in tandem with a second at 704 which both are for biasing the sensor towards the ear tissue and are made of a complaint material, see also Figure 9 at elements 902, 904 and column 10 lines 33-49). Assembled proximate the nozzle is being read as a product by process type limitation (see MPEP 2113).
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.
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 non-obviousness.
Claims 3 and 15-16 are rejected under 35 U.S.C. § 103 as being unpatentable over Qian in view of Monti et al. US Publication 2019/0208302 (hereinafter Monti).
Regarding claim 3, Qian discloses a compliant member with hinge end-stops that fix the rotational position of the compliant member relative to the housing (column 9 lines 17–26; column 1 lines 56–62 with the interpretation that first and second resilient lobes are 702, 704 with hinge stops at 604, 606 in the prior figure), but the detail is limited. Monti discloses an ear tip for an in-ear hearing device that is replaceably assembled to the nozzle of the housing (Figures 1-9), an anti-rotation feature at a portion of the body portion to which the first resilient lobe is assembled ([0040] which details tapering of the channel to aid in providing a friction fit accompanied by one or more barbs which would prevent rotation, see also at elements 54, 56), wherein the anti-rotation feature rotationally fixes the first resilient lobe (Figures 9-10, [0040]). It would have been obvious to the skilled artisan before the effective filing date to utilize the anti-rotation feature as taught by Monti with the device of Qian in order to aid in maintaining a correct orientation (Qian desires this as per column 9 lines 17-29).
Regarding Claim 15, see contents of rejected claims 1 and 3 above. Qian additionally a resilient lobe assembled to the body portion protruding from a side of the body portion opposite the side on which the sensor is located (element 220 engaging the concha, opposite the sensor/tragus side, column 5 lines 33-46; Figures 2, 3B).
Regarding Claim 16, Qian discloses the resilient lobe having greater stiffness on the side of the hearing device opposite the side on which the sensor is located. Specifically, the loop 706 of Figure 7B includes metal reinforcing members 708 and 710 on the sides of the loop engaging the concha - the side opposite the sensor/tragus - while "leaving a central portion of loop 706 free of reinforcing material a portion of loop 706 that contacts the conch a of a user's ear can be substantially softer" (column 10 lines 15–20). Thus, the reinforced, stiffer portion is on the side opposite the sensor. Figure7C further discloses a reinforcing member 712 "embedded within loop 706, which can provide a uniform stiffness" on the sensor-opposite side (column 10 lines 24–30), the thickness of which "can be adjusted to achieve a desired amount of resistance" - expressly teaching control of stiffness asymmetry between the sensor side and the sensor-opposite side.
Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable over Qian in view of Higgins et al. US Patent 11,265,643 (hereinafter Higgins).
Regarding claim 13, Qian discloses a wired earbud configuration (accessory device 120) in which earbuds 122 and 124 are electrically coupled to a connector plug 126 by a number of wires, the wire/cable exiting body portion 202 at the end opposite the nozzle/speaker opening (protrusion 203, column 5 lines 3–7 and Figure 1), but is silent on the cable assembly actually biasing the sensor towards the ear tissue (though it should be noted that the cable includes a mass and would invariably bias a sensor should it be placed on a side surface). Higgins teaches an ear-worn hearing device with a cable assembly that includes a shape-memory material that biases the cable to maintain contact between the sensor and the portion of the ear of the wearer when the earpiece is disposed in the ear canal (Claim 1 and column 1 lines 42-52), where the cable further comprises a conductor that electrically connects the sensor to the earpiece and that the cable is removably connected to the earpiece (claims 5 and 7). Therefore, it would have been obvious to the skilled artisan before the effective filing date to modify the wired earbud of Qian to incorporate shape-memory into the cable assembly as taught by Higgins in order to allow both an electrical connection but also aid in biasing the sensor toward ear tissue (better contact, better quality of signals sensed, see Qian column 5 lines 33-46, column 8 lines 7-12).
Conclusion
Any inquiry concerning this communication or earlier communications from the
examiner should be directed to Brian M Antiskay whose telephone number is (571)270-5179. The examiner can normally be reached M-F 10am-6pm EST.
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/B.M.A/ Examiner, Art Unit 3794
/JOSEPH A STOKLOSA/ Supervisory Patent Examiner, Art Unit 3794
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