DETAILED ACTION
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12,596,016 in view of Okamoto et al., JP 2021/129183, and Claims 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 18/635,252 in view of Okamoto et al., JP 2021/129183. Although the claims in the US Pat and the co-pending application do not disclose aborting the rotation, it would have been obvious to use the teaching of Okamoto (as disclosed below in the rejection), so as to properly correct the error caused by the external inference.
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 limitations are: various “module” in claim 8.
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they 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 these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitations to avoid 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 limitations recite sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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 1-7 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Okamoto et al., JP 2021/129183 (hereinafter Okamoto) (machine-translated version-as best as understood).
Regarding Claims 1-7 and 10. Okamoto discloses a calibration control for a speaker (Abstract), comprising:
obtaining real-time inertial measurement unit (IMU) data of the speaker during a rotation
calibration process, and determining whether the speaker is subject to an external force
interference according to the real-time IMU data (pages 2-3, and bottom of page 9 to top of page 10; pages 15-16, the rotation of the motors, cause deviation and error, and is an external force)
Note: Rest of the limitations in Claim 1 are not treated on the merit, since they are contingent method limitations and are not required to be performed, as said limitations depends on the condition whether the speaker is subject to the external force interference, but that condition may never occur. Consequently, the dependent claims 2-7 are also not treated on the merit, as they are also contingent limitations (see MPEP 2111.04, section II)
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.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Okamoto, JP 2021/129183.
Regarding Claims 8-9. Okamoto discloses a calibration control apparatus for a speaker (Abstract), comprising:
a collection module, configured to obtain real-time inertial measurement unit (IMU) data of the speaker during a rotation calibration process, and determine whether the speaker is subject to an external force interference according to the real-time IMU data (pages 2-3, and bottom of page 9 to top of page 10; pages 15-16, the rotation of the motors, cause deviation and error, and is an external force. Confirms the presence or absence of step-out);
an analysis module, configured to in response to determining that the speaker is subject to the external force interference, control the speaker to abort a rotation calibration operation, and detect whether an intensity value corresponding to the external force interference is greater than a preset intensity threshold (Pages 15, allowable range in the deviation) and a calibration module, configured to in response to the intensity value being greater than the preset intensity threshold (page 15, more than allowable range), control the speaker to restart from a calibration starting point of the speaker to perform the rotation calibration operation on an IMU module in the speaker (note: Okamoto already is aware that motors 32a and 32b can cause angular displacements or errors. In fact, Okamoto expects errors to occur in the rotation, as discussed at the bottom of page 9. In accordance, the computer stops the rotation once it reaches its predetermined target rotation position and further rotates toward the origin according to the deviation amount to correct the deviation. In other words, Okamoto is stopping the rotation in accordance with the expected deviation due to external interference caused by the motors. Based on this, the claimed invention of aborting the rotation in response to determining the speaker is subject to external force interference, is an obvious variation, as it also stops due to external interference and to take appropriate correction, accordingly; pages 9-25, with full description).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Milne et al., US Pat No. 10,292,000
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/HYUN D PARK/Primary Examiner, Art Unit 2857
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