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 July 15, 2026 have been fully considered but they are not persuasive.
Regarding the 101: Examiner notes the bolded items in Applicant’s arguments are considered additional elements which are claimed at a high level of generality and merely amount to implementing the abstract idea with generic conventional sensors and computer components. These additional elements do not provide significantly more to the abstract idea.
No clear practical application is claimed. Merely a series of abstract ideas are claimed in addition to additional elements recited at a high level of generality. The claims are not integrated into a practical application.
Regarding the prior art:
The applicant's amendments and arguments/remarks have been fully considered but are moot in view of the new grounds of rejections presented herein. Specifically, the examiner has provided the Shennib reference to teach the limitations presented in the newly amended claims.
Examiner further notes a PC or computer is portable as it can be moved.
Response to Amendment
Claim Objections
Claims 1-5, 7-10, 13-19 are objected to because of the following informalities:
Claim 8 is dependent on claim 6 which was cancelled. Claim 8 should be dependent on claim 1 accordingly.
Throughout the claims the term ‘where’ is used and this should be amended to ‘wherein’
In claim 17, ‘trail’ should read ‘trial’.
Claim 19 has the status identifier as (Currently Amended) but no amendments appear to have been made. For examination this will be treated as (Previously Presented).
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(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:
-In claims 1 and 17: ‘an analyser configured to analyse’ interpreted to be a processor per the specification 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 § 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 1-5, 7-10, 13-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites ‘a reference stimulus’ and then recites ‘two reference stimuli’ making it unclear if the ‘a reference stimulus’ is part of the ‘two reference stimuli’ or not. For examination purposes ‘a reference stimulus’ will be treated as part of the ‘two reference stimuli’.
Claim 1 recites ‘a test subject input’ multiple times in the claim making it unclear if each recitation refers to the same element or not.
Claim 1 recites ‘a target stimulus’ and ‘a reference stimulus’ after reciting ‘at least one stimulus’ making it unclear if the former two ‘stimulus’ are part of the ‘at least one stimulus’ or not.
Claim 1 recites the limitation "the estimate" in Line 27. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites ‘a target stimulus’ multiple times in the claim making it unclear if each recitation refers to the same element or not.
Claim 1 recites ‘a reference stimulus’ multiple times in the claim making it unclear if each recitation refers to the same element or not.
Claim 2 recites ‘a test protocol’ and is dependent back to claim 1 which recites the same making it unclear if the recitation in claim 2 is meant to refer to that in claim 1 or not.
Claim 2 recites ‘the test protocol is divided into two phases, a pre-test protocol and a test protocol’. It is unclear then how many test protocols are included. If each test-protocol includes both a pre-test protocol and a test protocol this would lead to an infinite amount of each as this continuously loops, as each test protocol that is part of the test protocol contains a subsequent test protocol.
Claim 10 recites the limitation "the analysis unit" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the analysis unit" in Line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "the analysis unit" in Line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites ‘a reference stimulus’ and then recites ‘two reference stimuli’ making it unclear if the ‘a reference stimulus’ is part of the ‘two reference stimuli’ or not. For examination purposes ‘a reference stimulus’ will be treated as part of the ‘two reference stimuli’.
Claim 17 recites ‘a target stimulus’ multiple times in the claim making it unclear if each recitation refers to the same element or not.
Claim 17 recites the limitation "the provided plurality of consecutive trials" in Line 17. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites ‘a reference stimulus’ multiple times in the claim making it unclear if each recitation refers to the same element or not.
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 1-5, 7-10, and 13-19 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 1-5, 7-10, and 13-19 are directed to statutory subject matter as the claims recite a system (claims 1-5, 7-10, 13-16 and 19) and a method (claims 17-18).
Step 2A, Prong One
Regarding claims 1, 17, and 19, 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 (see MPEP § 2106.04(a)(2), subsection II));
Specifically from claim 1:
a transducer configured to provide at least one stimulus into an ear of the test subject,
a portable device comprising a test subject interface for detecting a test subject input and for providing an output to the test subject, wherein the test subject interface comprises a screen, wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus,
a stimulus generator configured to generate the at least one stimulus,
where the stimulus generator is configured to provide a plurality of consecutive trials according to a test protocol, where the test protocol is created to estimate the hearing ability of test subject, and where each trial of the plurality of consecutive trials comprises two reference stimuli and one test stimulus, the test stimulus being either the target stimulus or the reference stimulus in accordance with the test protocol,
wherein the stimulus generator is configured to provide a trial of the plurality of consecutive trails in response to detecting a test subject input,
an analyser configured to analyse a correspondence between each trial of the plurality of consecutive trails and a following test subject input, wherein the analyser is configured to adjust the test protocol according to the analysed correspondence analysed by the analyser,
wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M, and where the test protocol provides a random distribution of the number N and M of the plurality of consecutive trials, and
wherein the analyser is configured to adaptively update the estimate of the hearing ability of the test subject based on the correspondence throughout the test protocol.
Specifically from claim 17 (similarly applies to claim 19):
providing a plurality of consecutive trials generated by a stimulus generator according to a test protocol into an ear of the test subject via a transducer,
wherein each trial of the plurality of consecutive trails comprises two reference stimuli and one test stimulus,
detecting a test subject input via a test subject interface of a portable device, wherein the test subject interface comprises a screen, wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus,
providing a trial of the plurality of consecutive trails by the stimulus generator in response to the detected test subject input detected via the test subject interface,
the test stimulus being either a target stimulus or the reference stimulus in accordance with the test protocol,
analysing a correspondence between each trail of the provided plurality of consecutive trials and a following test subject input by an analyser
adjusting the test protocol according to the analysed correspondence, analysed by the analyser,
adaptively update the estimate of the hearing ability of the test subject based on the correspondence throughout the test protocol, by the analyser, and
wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M, and where the test protocol provides a random distribution of the number N and M of trials.
These underlined limitations describe a mental process (including an observation, evaluation, judgment, opinion) and/or certain methods of organizing human activity 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. Further the claims recite limitations towards providing a trial and adjusting a trial which are directed towards managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).
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 (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC.
Examples of ineligible claims that recite certain methods of organizing human activity include:
a mental process that a neurologist should follow when testing a patient for nervous system malfunctions, In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193, 194-96 (CCPA 1982).
Step 2A, Prong Two
This judicial exceptions (abstract ideas) in claims 1-5, 7-10, and 13-19 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 performing the abstract idea merely invoke a computer as a tool.
•The data-gathering step 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 performing the abstract ideas.
•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 and conventional equipment to perform the abstract ideas. The claims do not apply the obtained response measurement to a particular machine.
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: (Examiner notes the bolded items above.) "a transducer" in claims 1 and 17, “a portable device” in claims 1 and 17, "a test subject interface" in claims 1 and 17, “screen comprising two alternative buttons” in claims 1 and 17, "a stimulus generator" in claims 1 and 17, "an analyser" in claims 1 and 17, "a processor" in claim 19, "program code" in claim 19.
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 (Pages 9-10) which discloses that the 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; and
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.
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 2-7, 10, 13-16 and 18 are steps that are also abstract as a mental process through additional data gathering or analysis or detailing further limitations of the certain methods of organizing human activity aspect
Claim 9 is extrasolutionary data output
Claims 9, 10, 13, 14, 15, 16 further recite the additional elements which are claimed at a high level of generality and merely invoke conventional computing equipment as noted above
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, 8-10, 13, and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menzel et al. (US 2003/0078515) in view of Moore et al. (US 2010/0324440) and Shennib (US 2006/0210090).
Regarding claim 1, Menzel teaches system for estimating a hearing ability of a test subject (Abstract), where the system comprises:
a transducer configured to provide at least one stimulus into an ear of the test subject (Paragraph 0048; Figure 1; “the sound card 13 is connected to stereo speakers 14 and 15, or to a headphone”),
a portable device comprising a test subject interface for detecting a test subject input and for providing an output to the test subject, wherein the test subject interface comprises a screen (Paragraphs 0048 and 0086-0087; Figure 1; PC with elements 17, 18, 19),
a stimulus generator configured to generate the at least one stimulus (Paragraph 0048; Figure 1; “a sound card 13 which provides data processing resources for producing audio output and receiving audio input”),
where the stimulus generator is configured to provide a plurality of consecutive trials according to a test protocol (Figures 10A-10B), where the test protocol is created to estimate the hearing ability of test subject (Paragraphs 0070—084), and where each trial of the plurality of consecutive trials comprises two reference stimuli and one test stimulus (Figure 4; Paragraphs 0086-0087; 3-Interval Forced Choice), the test stimulus being either the target stimulus or the reference stimulus in accordance with the test protocol (Figure 4; Paragraphs 0086-0087; 3-Interval Forced Choice),
wherein the stimulus generator is configured to provide a trial of the plurality of consecutive trails in response to detecting a test subject input (Paragraphs 0086-0087), and
an analyser configured to analyse a correspondence between each trial of the plurality of consecutive trails and a following test subject input, wherein the analyser is configured to adjust the test protocol according to the analysed correspondence analysed by the analyser (Paragraph 0137; “A computer program can drive the sound level along a pre-prescribed algorithm that adjusts itself based on inputs from the user.”).
wherein the analyser is configured to adaptively update the estimate of the hearing ability of the test subject based on the correspondence throughout the test protocol (Paragraph 0056).
Menzel is silent on wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus.
Shennib teaches wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus (Paragraph 0027; Examiner notes this is in combination with Menzel which provides those two options thus the modification would correspond to one button for a target stimulus and one button for a reference stimulus).
It would have been obvious to one of ordinary skill in the art to have modified Menzel with Shennib because providing distinct buttons for distinct responses would be considered routine experimentation with expectation of predictable results.
Menzel is silent on wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M, and where the test protocol provides a random distribution of the number N and M of the plurality of consecutive trials, and
Moore teaches wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M (Paragraph 0109). It would have been obvious to one of ordinary skill in the art to modify Menzel with Moore because it aids in sustained focused attention (Paragraph 0109 of Moore) and appears to be a design choice such that said modification would only require routine experimentation with reasonable expectation of predictable results of reducing biases. And it would have been obvious to one of ordinary skill in the art to have modified Menzel in view of Moore to have where the test protocol provides a random distribution of the number N and M of the plurality of consecutive trials because this appears to be a design choice such that it would have been obvious to one of ordinary skill in the art to have modified Menzel to provide a random distribution of the trials because it would only require routine experimentation with reasonable expectation of predictable results of reducing biases.
Regarding claim 2, Menzel teaches wherein the test protocol is divided into two phases, a pre-test protocol and a test protocol (Figure 2; Paragraphs 0055-0056).
Regarding claim 8, Menzel teaches wherein the hearing ability of the test subject is adaptively updated in response to the test subject input, where: -the test subject input is a positive test subject input if identical to an identification of the target stimulus or the reference stimulus, and – the test subject input is a negative test subject input if identical to an incorrect identification of the target stimulus or the reference stimulus (Figure 2; Paragraph 0086; Paragraphs 0056-0057).
Regarding claim 9, Menzel teaches wherein the test subject interface is configured to provide a test result as output to the test subject in response to the positive subject input or the negative test subject input (Figure 2; Paragraph 0086; Paragraphs 0056-0057; Table 1).
Regarding claim 10, Menzel teaches wherein the analysis unit is configured to determine the test stimulus based on one or more test subject inputs (Figure 2; Paragraph 0086; Paragraphs 0056-0057; Table 1).
Regarding claim 13, Menzel teaches wherein, at the initiation of the test protocol:-firstly, the stimulus generator is configured to provide a first trial of the plurality of consecutive trials and a second trial of the plurality of consecutive trials, where the first trial comprises the test stimulus being the target stimulus and the second trial comprises the test stimulus being the reference stimulus, and -secondly, for a fixed number of trials of the plurality of consecutive trials, the stimulus generator is configured to provide a contrast level (CL) or a signal-to-noise ratio (SNR) of the target stimulus that is adjusted by: -decreasing the CL or SNR after a positive test subject input, and -increasing the CL or SNR after a negative test subject input (Figure 2; Paragraph 0086; Paragraphs 0056-0057; Table 1).
Regarding claim 17, method of estimating a hearing ability of a test subject (Abstract; Figure 2), where the method comprises:
providing a plurality of consecutive trials generated by a stimulus generator (Paragraph 0048; Figure 1; “a sound card 13 which provides data processing resources for producing audio output and receiving audio input”) according to a test protocol (Figure 10A-10B) into an ear of the test subject via a transducer (Paragraph 0048; Figure 1; “the sound card 13 is connected to stereo speakers 14 and 15, or to a headphone”),
wherein each trial of the plurality of consecutive trails comprises two reference stimuli and one test stimulus (Figure 4; Paragraphs 0086-0087; 3-Interval Forced Choice),
detecting a test subject input via a test subject interface of a portable device, wherein the test subject interface comprises a screen, (Paragraph 0048 and 0086-0087; Figure 1; PC with elements 17, 18, 19),
providing a trial of the plurality of consecutive trails by the stimulus generator in response to the detected test subject input detected via the test subject interface (Paragraphs 0086-0087),
the test stimulus being either a target stimulus or the reference stimulus in accordance with the test protocol (Figure 4; Paragraphs 0086-0087; 3-Interval Forced Choice),
analysing a correspondence between each trail of the provided plurality of consecutive trials and a following test subject input by an analyser (Paragraph 0137; “A computer program can drive the sound level along a pre-prescribed algorithm that adjusts itself based on inputs from the user.”),
adjusting the test protocol according to the analysed correspondence, analysed by the analyser (Paragraph 0137; “A computer program can drive the sound level along a pre-prescribed algorithm that adjusts itself based on inputs from the user.”; Figures 4 and 10A-10B).
adaptively update the estimate of the hearing ability of the test subject based on the correspondence throughout the test protocol, by the analyser (Paragraph 0056), and
Menzel is silent on wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus.
Shennib teaches wherein the screen comprises two alternative buttons for detecting the test subject input, wherein one button corresponds to a target stimulus and the other button corresponds to a reference stimulus (Paragraph 0027; Examiner notes this is in combination with Menzel which provides those two options thus the modification would correspond to one button for a target stimulus and one button for a reference stimulus).
It would have been obvious to one of ordinary skill in the art to have modified Menzel with Shennib because providing distinct buttons for distinct responses would be considered routine experimentation with expectation of predictable results.
Menzel is silent on wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M, and where the test protocol provides a random distribution of the number N and M of trials.
Moore teaches wherein the test stimulus is a target stimulus for a number (N) of the plurality of consecutive trials and the test stimulus is a reference stimulus for a number (M) of the plurality of consecutive trials, where N> M (Paragraph 0109). It would have been obvious to one of ordinary skill in the art to modify Menzel with Moore because it aids in sustained focused attention (Paragraph 0109 of Moore) and appears to be a design choice such that said modification would only require routine experimentation with reasonable expectation of predictable results of reducing biases. And it would have been obvious to one of ordinary skill in the art to have modified Menzel in view of Moore to have where the test protocol provides a random distribution of the number N and M of the plurality of consecutive trials because this appears to be a design choice such that it would have been obvious to one of ordinary skill in the art to have modified Menzel to provide a random distribution of the trials because it would only require routine experimentation with reasonable expectation of predictable results of reducing biases.
Regarding claim 18, Menzel teaches wherein the method comprises a preliminary estimation of the hearing ability of the test subject in a pre-test protocol carried out before initiation of the test protocol, and the preliminary estimation is updated throughout the test protocol (Figure 2).
Regarding claim 19, Menzel teaches a data processing system comprising a processor and program code means for causing the processor to perform at least some of the steps of the method of claim 17 (Paragraph 0026; further see rejection of claim 17 above).
Claim(s) 3-5 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menzel et al. (US 2003/0078515) in view of Moore et al. (US 2010/0324440) and Shennib (US 2006/0210090) and in further view of Bernstein (Reference U on PTO-892; 2013).
Regarding claim 3, Menzel is silent on the spectro-temporally modulated audio signal. Bernstein teaches wherein the target stimulus comprises a spectro-temporally modulated audio signal, where a modulation depth of the spectro-temporally modulated audio signal defines a contrast level (CL) of the target stimulus (Methods, Procedure Section, Page 6). It would have been obvious to one of ordinary skill in the art to modify Menzel with Bernstein because it provides a more accurate prediction of speech intelligibility than audiometric measures alone (Conclusions of Bernstein).
Regarding claim 4, Menzel is silent on the combined test audio signal and noise signal. Bernstein teaches wherein the target stimulus comprises a combined test audio signal and noise audio signal, where a sound pressure level between the test audio signal and the noise audio signal defines a signal-to-noise ratio (SNR) of the target stimulus (Methods, Procedure Section, Page 6). It would have been obvious to one of ordinary skill in the art to modify Menzel with Bernstein because it provides a more accurate prediction of speech intelligibility than audiometric measures alone (Conclusions of Bernstein).
Regarding claim 5, Menzel is silent on the noise audio signal. Bernstein teaches wherein the reference stimulus comprises a noise audio signal (Methods, Procedure Section, Page 6). It would have been obvious to one of ordinary skill in the art to modify Menzel with Bernstein because it provides a more accurate prediction of speech intelligibility than audiometric measures alone (Conclusions of Bernstein).
Regarding claim 7, Menzel is silent on the alternating CL or SNR of a target stimulus. Bernstein teaches wherein the stimulus generator is configured to provide a contrast level (CL) or a signal-to-noise ratio (SNR) of the target stimulus that is alternating between: -the CL or SNR, respectively, that is higher than the hearing ability of the test subject, and -the CL or SNR, respectively, that is lower than the hearing ability of the test subject (Methods, Procedure Section, Page 6). It would have been obvious to one of ordinary skill in the art to modify Menzel with Bernstein because it provides a more accurate prediction of speech intelligibility than audiometric measures alone (Conclusions of Bernstein).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menzel et al. (US 2003/0078515) in view of Moore et al. (US 2010/0324440) and Shennib (US 2006/0210090) and in further view of Sanchez-Lopez (Reference V on PTO-292; 2021)
Regarding claim 14, Menzel is silent on the adjustment of the test protocol. Sanchez-Lopez teaches wherein, in response to two or more of the test subject inputs corresponding to the target stimulus from the test subject, the analysis unit is configured to adjust the test protocol wherein: -the stimulus generator provides that a current trial of the plurality of consecutive trials comprises the test stimulus being the reference stimulus, and -a successive trial of the plurality of consecutive trials comprises the test stimulus being the target stimulus with a decreased contrast level (CL) or a decreased signal-to-noise ratio (SNR) compared to the most previous trial of the plurality of consecutive trials comprising the target stimulus (Section 4.1 Method). It would have been obvious to one of ordinary skill in the art to modify Menzel with Sanchez-Lopez because Sanchez-Lopez teaches it as a known in the art test protocol (Section 4.1 Method of Sanchez-Lopez) and thus would yield predictable results.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menzel et al. (US 2003/0078515) in view of Moore et al. (US 2010/0324440) and Shennib (US 2006/0210090) and Bernstein (Reference U on PTO-892; 2013) and in further view of Sanchez-Lopez (Reference V on PTO-292; 2021).
Regarding claim 15, Menzel is silent on the adjustment of the test protocol. Sanchez-Lopez teaches wherein in response to two or more successive identical test subject inputs corresponding to the reference stimulus from the test subject, the analysis unit is configured to adjust the test protocol wherein: -the stimulus generator provides that a current trial of the plurality of consecutive trials comprises the target stimulus with an increased contrast level (CL) or an increased signal-to-noise ratio (SNR), compared to the most previous trial comprising the target stimulus (Section 4.1 Method). It would have been obvious to one of ordinary skill in the art to modify Menzel with Sanchez-Lopez because Sanchez-Lopez teaches it as a known in the art test protocol (Section 4.1 Method of Sanchez-Lopez) and thus would yield predictable results.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Menzel et al. (US 2003/0078515) in view of Moore et al. (US 2010/0324440) and Shennib (US 2006/0210090) and Bernstein (Reference U on PTO-892; 2013) and in further view of Bernstein (Reference W on PTO-892; 2016; hereinafter BernsteinII).
Regarding claim 16, Menzel is silent on estimating an audible contrast threshold or a hearing-in-noise threshold from a psychometric function. BernsteinII teaches wherein the analyser is configured to estimate an audible contrast threshold or a hearing-in-noise threshold of the test subject from a psychometric function derived from a contrast level (CL) or a signal-to-noise ratio (SNR) of a plurality of the target stimuli (STM Sensitivity and Analysis Sections; Pages 5-7). It would have been obvious to one of ordinary skill in the art to modify Menzel with BernsteinII because it confirms that STM sensitivity can account for a significant proportion of the variance in speech-reception performance in noise which would aid in the development of treatment for a user (Discussion section of BernsteinII).
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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