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 Objections
Claims 23-24 objected to because of the following informalities: the phrase "one side of the head only" should be one side of a head only". 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.
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: "an element adapted to rotate" in claim 2.
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.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 24 rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The language presented claims the user’s head and auditory nerve as part of their device, by reciting "providing output at one side of the head only to at least one auditory nerve. Examiner suggests changing the language to include that the device is adapted to output to the auditory nerve.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 2, 3, 7, & 14 is/are rejected under 35 U.S.C. 102(a)(1)(2) as being anticipated by US 2021/0096208 hereinafter Rittenschober.
In regards to Claim 1: A biomimetic microphone, the biomimetic microphone comprising at least two audio receivers, comprising at least one first audio receiver, the at least one first audio receiver (Rittenschober, Paragraph 48; Figure 2 Item 11), and at least one second audio receiver at a distance from the first position (Rittenschober, Paragraph 48; Figure 2 Item 10), wherein the at least one second audio receiver is adapted to receive sound in a plane in at least one sequence (Rittenschober, Paragraph 21), wherein the at least one sequence is at least one of continuous and discrete (Rittenschober, Paragraph 48; The circular path described in prior art is interpreted as continuous), (Rittenschober, Paragraph 48; Figure 2; “circular path”), an ellipsoid, a surface section of a sphere, and a surface section of a cylinder,
the combination of the at least one first audio receiver and the at least one second audio receiver adapted to receive spatial audio input (Rittenschober, Paragraph 1; “the present invention relates to an apparatus, to a system and to a method for spatially locating sound sources”),
at least one processor for processing audio input of the at least two audio receivers, and for providing output, wherein the processor is adapted to select sound in at least one direction (Rittenschober, Paragraph 49; Figure 2 Item 43).
In regards to Claim 2: The biomimetic microphone according to claim 1, wherein the at least one second audio receiver is selected from an element adapted to rotate (Rittenschober, Paragraph 51; Figure 2 Item 30) said at least one audio receiver eccentric of a rotating axis, from a static array of audio receivers located spaced apart from one and another (Rittenschober, Paragraph 48; Figure 2 Items 11), wherein by addressing individual audio receivers in the static array sound is received at spaced apart locations, wherein in the static array of audio receivers each audio receiver individually is adapted to be addressed by a receiver controller, and a combination thereof (Rittenschober, Paragraph 48 & 49; Figure 2 Item 40).
In regards to Claim 3: The biomimetic microphone according to claim 1 a rotating axis, comprising at least one actuator for moving said at least one second audio receiver (Rittenschober Paragraph 51 Figure 2 Item 30).
In regards to Claim 7: wherein the at least one direction and wherein the processor is adapted to filter sound, and sound from at least one specific direction (Rittenschober, Paragraph 27 & 33; Examiner interprets the spatial filtering as selecting one direction of sound).
In regards to Claim 14: A product comprising at least one biomimetic microphone according to claim 1 (Rittenschober, Entire Device of Figure 2).
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 nonobviousness.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of an Embodiment of Rittenschober hereinafter Embodiment.
e. In regards to Claim 4: Rittenschober teaches all of claim 1, but does not teach wherein the at least one first audio receiver is adapted to operate in pulsating mode, and and wherein the biomimetic microphone is adapted to at least one of to sample sound in phase, to sample sound out of phase, to sample sound in a frequency dependent mode, and a combination thereof.
Embodiment teaches wherein the at least one first audio receiver is adapted to operate in pulsating mode, and and wherein the biomimetic microphone is adapted to at least one of two sample sound in phase, to sample sound out of phase, to sample sound in a frequency dependent mode, and a combination thereof (Rittenschober, Paragraph 55; Examiner interprets a varied radius of the rotation axis to as a device that promotes a pulsing mode).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the pulsing mode in a frequency dependent mode taught in Embodiment to the apparatus for spatially locating sound resources, the motivation being to provide a method to vary the reception of sound.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0093208 hereinafter Rittenschober in view of US 2014/0018736 hereinafter Hessler.
In regards to Claim 6: Rittenschober teaches all of claim 1 but does not teach wherein the at least one first audio receiver is in a reduced pressure environment, such as a sealed chamber, and/or wherein the at least one second audio receiver is in a reduced pressure environment, such as a sealed chamber, wherein the reduced pressure environment, each individually, in particular comprise a fluid-to- fluid sound transmitter.
Hessler teaches wherein the at least one first audio receiver is in a reduced pressure environment (Hessler, Paragraph 22; “Fluid filled channel”), such as a sealed chamber, and/or wherein the at least one second audio receiver is in a reduced pressure environment, such as a sealed chamber, wherein the reduced pressure environment, each individually, in particular comprise a fluid-to- fluid sound transmitter (Hessler, Paragraph 22; “Fluid filled channel”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the fluid filled channel taught in Hessler to the apparatus for spatially locating sound sources taught by Rittenschober, the motivation being to reduce or eliminate possible sound pressure waves traveling to the inner ear.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of A biometric Miniaturized Microphone Array for Sound Direction Finding Applications Based on a Phase-Enhanced Electrical Coupling Network hereinafter Sensor.
In regards to Claim 9: Rittenschober teaches all of claim 1, but does not teach wherein the at least one first audio receiver and at least one second audio receiver are each individually adapted to receive sound in a frequency range of 100 Hz-20kHz (Sensor, Abstract).
Sensor teaches wherein the at least one first audio receiver and at least one second audio receiver are each individually adapted to receive sound in a frequency range of 100 Hz-20kHz (Sensor, Abstract).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the sound frequency range received by a microphone taught in Sensors to the apparatus for spatially locating sound sources taught in Rittenschober, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. See MPEP 2144.05.II. The Examiner notes that a particular parameter must be recognized as a result effective variable, in this case, that parameter is frequency in hertz which achieves the recognized result of receiving all biologically observed audio therefore, one of ordinary skill in the art at the filing date of the invention would have found the claimed range through routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See also In re Boesch, 617 F.2d 272, USPQ 215 (CCPA 1980).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of US 3,749,853 hereinafter Ely.
In regards to Claim 10: Rittenschober teaches all of claim 1, but does not teach wherein the at least one second audio receiver is adapted to receive sound with a frequency of 1- 100 Hz.
Ely teaches wherein the at least one second audio receiver is adapted to receive sound with a frequency of 1- 100 Hz (Ely, Column 4 Lines 25-29).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the frequency of the audio receiver taught in Ely to the apparatus for spatially locating sound sources taught in Rittenschober, the motivation being to provide a frequency to the user that is audible.
Claim(s) 11 & 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of US 2020/0236475 hereinafter Fritsch.
In regards to Claim 11: Rittenschober teaches all of claim 2, but does not teach when comprising the static array of audio receivers located spaced apart from one and another, wherein the static array of second audio receivers comprises 1 to n second audio receivers, wherein audio receivers are located in a curve selected from a single or and a multiple curve.
Fritsch teaches when comprising the static array of audio receivers located spaced apart from one and another, wherein the static array of second audio receivers comprises 1 to n second audio receivers, wherein audio receivers are located in a curve selected from a single or and a multiple curve (Fritsch, Paragraph 59).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the multiple audio receivers located on a curve taught in Fritsch to the apparatus for spatially locating sound sources taught in Rittenschober, the motivation being to provide more directions for the sound to be received from.
In regards to Claim 12: A modified Rittenschober teaches all of claims 1, 2, & 11, and he biomimetic microphone according to claim 11, wherein the static array of second audio receivers comprises 2-210 second audio receivers, in particular 3-28 second audio receivers, such as 4-26 second audio receivers, and wherein first and second audio receivers each individually are selected from transducers, a moving coil, a permanent magnet transducer, a balanced armature transducer, and a piezo-element (Fritsch, Paragraph 59).
Claim(s) 15-17, 19, & 21-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of US 2020/0121927 hereinafter Hampton.
In regards to Claim 15: Rittenschober teaches all of claims 14 and 1, but does not teach the product of claim 14 being a single hearing implant for transmitting audio input to the brain over one auditory nerve, wherein the biomimetic microphone is adapted to provide output to at least one auditory nerve, only one of a left side of a human head and at a right side of the human head
Hampton teaches of the product of claim 14 being a single hearing implant for transmitting audio input to the brain over one auditory nerve, wherein the biomimetic microphone is adapted to provide output to at least one auditory nerve, the at least one auditory nerve at only one of a left side of a human head and at a right side of the human head (Hampton; Paragraph 11; Figure 2 Item 200; Examiner interprets the device to only provide audio stimulation to one ear of the user.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the hearing implant taught in Hampton to the apparatus for spatially locating sound sources in Rittenschober, the motivation being to provide an attachment to the head of a user.
In regards to Claim 16: A modified Rittenschober teaches all of claim 15, and wherein the hearing implant is adapted to transfer sound wireless from the biomimetic microphone to the cochlea (Hampton, Paragraph 10).
In regards to Claim 17: A modified Rittenschober teaches all of claim 15, and wherein the hearing implant is selected from fully implantable, and from comprising and an internal part, the external part comprising the biomimetic microphone, and (Hampton, Paragraph 11; “It will be understood to a person ordinarily skilled in the art that the cochlear implant 210 is described to be surgically implanted in user's ear”).
In regards to Claim 19: A modified Rittenschober teaches all of claim 15, and further comprising at least one coil for wireless transmission, and wherein the implant is adapted to provide a stimulus to the at least one audio nerve (Hampton, Paragraph 11; Figure 2 Items 225, 230, & 235).
In regards to Claim 21: A modified Rittenschober teaches all of claim 15, and further comprising an electro-neuro interface for connecting the hearing implant to the at least one audio nerve (Hampton, Paragraph 11; Figure 2 Item 240; “an implant electrode array 240 creates a plurality of acoustic stimulation in the user's ear based on the plurality of speech frequencies received by the implant receiver 235”).
In regards to Claim 22: A modified Rittenschober teaches all of claim 15, and wherein the electro-neuro interphase is adapted to be provided in the cochlea (Hampton, Paragraph 11; “an implant electrode array 240 creates a plurality of acoustic stimulation in the user's ear based on the plurality of speech frequencies received by the implant receiver 235”).
In regards to Claim 23: Rittenschober teaches of a biomimetic microphone, the biomimetic microphone comprising at least two audio receivers, comprising
at least one first audio receiver, the at least one first audio receiver being at a first position in the biomimetic microphone (Rittenschober, Paragraph 48; Figure 2 Item 11)), and at least one second audio receiver at a distance from the first position (Rittenschober, Paragraph 48; Figure 2 Item 10), wherein the at least one second audio receiver is adapted to receive sound in a plane in at least one sequence (Rittenschober, Paragraph 21), wherein the at least one sequence is at least one of continuous and discrete (Rittenschober, Paragraph 48; the circular path described in the prior art is interpreted as continuous), wherein the plane is selected from a circle (Rittenschober, Paragraph 48; Figure 2; “Circular Path”), an ellipsoid, a surface section of a sphere, a surface section of a cone, and a surface section of a cylinder,
the combination of the at least one first audio receiver and the at least one second audio receiver adapted to receive spatial audio input (Rittenschober, Paragraph 1; “ the presented invention relates to an apparatus, to a system and to a method for spatially locating sound sources”),
at least one processor for processing audio input of the at least two audio receivers, and for providing output, wherein the processor is adapted to select sound in at least one direction (Rittenschober, Paragraph 49; Figure 2 Item 43); the method
Rittenschober does not teach of a method of operating a hearing implant, and processing audio input with the at least one processor, comprising activating the hearing implant, receiving spatial audio input with the at least one first audio receiver and the at least one second audio receiver, and providing output at one side of the head only to at least one auditory nerve, such as by a cochlear implant, to the brain over one auditory nerve.
Hampton teaches of a method of operating a hearing implant (Hampton, Paragraph 11; Figure 2; Examiner interprets the description of figure 2 as laying out the steps of use), processing audio input with the at least one processor, comprising activating the hearing implant (Hampton, Paragraph 10; Figure 2 Item 220), receiving spatial audio input with the at least one first audio receiver and the at least one second audio receiver (Hampton, Paragraph 10; Figure 2 Item 235), and providing output at one side of the head only to at least one auditory nerve, such as by a cochlear implant, to the brain over one auditory nerve (Hampton; Paragraph 11; Figure 2 Item 200; Examiner interprets the device to only provide audio stimulation to one ear of the user.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the method for operating a hearing implant taught in Hampton to the method for spatially locating sound sources taught in Rittenschober, the motivation being to provide direct stimulation to the auditory nerve.
In regards to Claim 24: Rittenschober teaches of a biomimetic microphone, the biomimetic microphone comprising at least two audio receivers, comprising
at least one first audio receiver, the at least one first audio receiver being at a first position in the biomimetic microphone (Rittenschober, Paragraph 48; Figure 2 Item 11)), and at least one second audio receiver at a distance from the first position (Rittenschober, Paragraph 48; Figure 2 Item 10), wherein the at least one second audio receiver is adapted to receive sound in a plane in at least one sequence (Rittenschober, Paragraph 21), wherein the at least one sequence is at least one of continuous and discrete (Rittenschober, Paragraph 48; the circular path described in the prior art is interpreted as continuous), wherein the plane is selected from a circle (Rittenschober, Paragraph 48; Figure 2; “Circular Path”), an ellipsoid, a surface section of a sphere, a surface section of a cone, and a surface section of a cylinder,
the combination of the at least one first audio receiver and the at least one second audio receiver adapted to receive spatial audio input (Rittenschober, Paragraph 1; “ the presented invention relates to an apparatus, to a system and to a method for spatially locating sound sources”),
at least one processor for processing audio input of the at least two audio receivers, and for providing output, wherein the processor is adapted to select sound in at least one direction (Rittenschober, Paragraph 49; Figure 2 Item 43); the method
Rittenschober does not teach of a non-transitory computer-readable medium storing a hearing implant computer program comprising the instructions of operating a hearing implant, and processing audio input with the at least one processor, the instructions causing the computer to carry out the following steps; activating the hearing implant, receiving spatial audio input with the at least one first audio receiver and the at least one second audio receiver, and providing output at one side of the head only to at least one auditory nerve, such as by a cochlear implant, to the brain over one auditory nerve.
Hampton teaches of a non-transitory computer-readable medium storing a hearing implant computer program comprising the instructions for operating (Hampton, Paragraph 11; Figure 2 item 111; Examiner interprets the speech processor of figure 2 as capable of storing the instructions for operating a hearing implant), processing audio input with the at least one processor, comprising activating the hearing implant (Hampton, Paragraph 10; Figure 2 Item 220), receiving spatial audio input with the at least one first audio receiver and the at least one second audio receiver (Hampton, Paragraph 10; Figure 2 Item 235), and providing output at one side of the head only to at least one auditory nerve, such as by a cochlear implant, to the brain over one auditory nerve (Hampton; Paragraph 11; Figure 2 Item 200; Examiner interprets the device to only provide audio stimulation to one ear of the user.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add the method for operating a hearing implant taught in Hampton to the method for spatially locating sound sources taught in Rittenschober, the motivation being to provide direct stimulation to the auditory nerve.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0096208 hereinafter Rittenschober in view of US 2020/0121927 hereinafter Hampton in further view of US 2015/0343225 hereinafter Leigh.
In regards to Claim 18: A modified Rittenschober teaches all of claim 15, but does not teach of a housing, wherein the housing has a size of 1-5 cm by 1-5 cm and 0.2-2 cm.
Leigh teaches of a housing, wherein the housing has a size of 1-5 cm by 1-5 cm and 0.2-2 cm (Leigh, Paragraph 55).
It would have been obvious to one of ordinary skill in the art at the filing date of the invention to add the dimensions of the housings taught in Leigh to the hearing implant of a modified Rittenschober, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. See MPEP 2144.05.II. The Examiner notes that a particular parameter must be recognized as a result effective variable, in this case, that parameter is dimensions in centimeter which achieves the recognized result of keeping the device small enough to be attached to the side of a user’s head therefore, one of ordinary skill in the art at the filing date of the invention would have found the claimed range through routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See also In re Boesch, 617 F.2d 272, USPQ 215 (CCPA 1980).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NOE R DIETZ whose telephone number is (571)272-1135. The examiner can normally be reached Mon-Fri 8am - 5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached at (571)-272-4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.R.D./Patent Examiner, Art Unit 3791
/ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791
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