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 .
Election/Restrictions
Applicant’s election without traverse of group I, claims 1-20 in the reply filed on 5/21/2026 is acknowledged.
Claims 21-41 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 5/21/2026.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than
an abstract idea. A streamlined analysis of claim 1 follows.
Regarding claim 1, the claim recites a system for audiometric testing. Thus, the claim is directed to a machine/apparatus, which is one of the statutory categories of invention. The claim is then analyzed to determine whether it is directed to any judicial exception. The following limitations set forth a judicial exception:
"conducting an audiometric test…electronically comparing the result…receiving…an electronic acknowledgment…the results…and the notification."
These limitations describe a mathematical calculation. Furthermore, the limitations also describe a mental process as the skilled artisan is capable of performing the recited limitations and making a mental assessment thereafter. Examiner also notes that nothing from the claims suggest that the limitations cannot be practically performed by a human, or using simple pen/paper.
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, integrates the identified judicial exception into a practical application. For this part of the 101 analysis, the following additional limitations are considered:
"A system for audiometric testing, comprising: an audiometer including a tone generator in electronic communication with a headset…a mobile device...a display screen…one or more processors…a non-transitory machine-readable medium including program code…".
These additional limitations do not integrate the judicial exception into a practical
application. Rather, the additional limitations are each recited at a high level of generality such that it amounts to insignificant extra-solution activity, e.g., mere data gathering steps necessary to perform the identified judicial exception do not integrate the claims into a practical application. See MPEP 2106.05(g).
The additional limitations also do not add significantly more to the identified judicial exception because they are recited at a high level of generality. Moreover, Examiner takes official notice that "a non transitory machine readable medium including program code that cause the one or more processors to perform a method" is widely- understood, routine, and conventional.
Dependent claims 2-20 also fail to add something more to the abstract independent claims as they merely further limit the abstract idea, recite limitations that do not integrate the claims into a practical application for substantially similar reasons as set forth above, and/or do not recite significantly more than the identified abstract idea for substantially similar reasons as set forth above.
Therefore, claims 1-20 are not patent eligible under 35 USC 101.
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 4-13, 15-18, 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 4, 6, and 15 recites “the system of claim…wherein the method further comprises”.
Claim 5 contains the trademark/trade name “Focus tracking”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe focus tracking technology and, accordingly, the identification/description is indefinite.
Claim 17 contains the trademark/trade name “Bluetooth”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe Bluetooth technology and, accordingly, the identification/description is indefinite.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-4, 6-11, 13-16, 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fausti (US 20130274628) in view of Kanukurthy (US 20190073618)
Regarding claim 1, Fausti discloses A system for audiometric testing, comprising: an audiometer including a tone generator in electronic communication with a headset worn by a subject to be tested (paragraph 0065); and a mobile device in electronic communication with the audiometer (paragraph 0065-0067), wherein the audiometer and the mobile device are separate devices (paragraph 0066-0067, 0097), and the mobile device includes: a display screen (paragraph 0097); one or more processors (paragraph 0097); and a non-transitory machine-readable medium including program code that causes the one or more processors to perform a method comprising: displaying, on the display screen, instructions to the subject (paragraph 0066); conducting an audiometric test of the subject using the mobile device to control the audiometer (paragraph 0066-0067); displaying, on the display screen, results of the audiometric test; electronically comparing the results of the audiometric test with a baseline test for the subject (paragraph 0057, 0059-0060, 0131); displaying, on the display screen, a notification of a hearing shift if the results of the audiometric test differ from the baseline test by more than a predetermined threshold (paragraph 0061-0062, 0072-0076); and receiving, via the mobile device, the results of the audiometric test, and the notification of the hearing shift, if any (paragraph 0008, 0070-0076).
Fausti discloses all of the claim limitations except a training video with an electronic acknowledgment from the subject that the subject has viewed the training video. Kanukurthy teaches a training video with an electronic acknowledgment from the subject that the subject has viewed the training video (paragraph 0112, 0114, 0171-0172). Therefore, it would have been obvious at the effective filing date of the invention to modify Fausti’s instructions to include a a training video with acknowledgment as taught by Kanukurthy for the purpose of ensuring user’s protection and safety by ensuring accurate testing.
Regarding claim 2, Fausti discloses all of the claimed limitations except The system of claim 1, wherein the electronic acknowledgment comprises an electronic signature. Kanukurthy teaches wherein the electronic acknowledgment comprises an electronic signature (paragraph 0112, 0114, 0171-0172). Therefore, it would have been obvious at the effective filing date of the invention to modify Fausti’s instructions to include a a training video with acknowledgment as taught by Kanukurthy for the purpose of ensuring user’s protection and safety by ensuring accurate testing.
Regarding claim 3, Fausti discloses all of the claimed limitations except wherein displaying the training video comprises preventing the training video from being skipped. The system of claim 1, Kanukurthy teaches wherein displaying the training video comprises preventing the training video from being skipped (paragraph 0112, 0114, 0171-0172). Therefore, it would have been obvious at the effective filing date of the invention to modify Fausti’s instructions to include a training video with acknowledgment as taught by Kanukurthy for the purpose of ensuring user’s protection and safety by ensuring accurate testing.
Regarding claim 4, Fausti discloses all of the claimed limitations except The system of claim 1, wherein the method further comprises receiving confirmation from the subject that the training video has been viewed, and wherein conducting the audiometric test is prevented until the confirmation from the subject has been received. Kanukurthy teaches wherein the method further comprises receiving confirmation from the subject that the training video has been viewed, and wherein conducting the audiometric test is prevented until the confirmation from the subject has been received (paragraph 0112, 0114, 0171-0172). Therefore, it would have been obvious at the effective filing date of the invention to modify Fausti’s instructions to include a training video with acknowledgment as taught by Kanukurthy for the purpose of ensuring user’s protection and safety by ensuring accurate testing.
Regarding claim 6, Fausti discloses The system of claim 1, wherein the method further comprises, prior to conducting the audiometric test: confirming that a room in which the audiometric test is to be administered has a set of background sound pressure levels that conform to a predetermined standard (paragraph 0069); determining that a calibration of the audiometer has been validated at least once on a day in which the audiometric test is to be administered (paragraph 0076-0077); and conducting the audiometric test once it is confirmed that the room in which the audiometric test is to be administered has the set of background sound pressure levels that conform to the predetermined standard and it is determined that the calibration of the audiometer has been validated at least once on the day in which the audiometric test is to be administered (paragraph 0069, 0076-0077).
Regarding claim 7, Fausti discloses The system of claim 6, wherein the predetermined standard for the room includes a plurality of octave-band center frequencies and corresponding maximum sound pressure levels, and wherein confirming comprises confirming the set of background sound pressure levels at each of the plurality of octave-band center frequencies do not exceed the corresponding maximum sound pressure levels (paragraph 0131, 0138, 0140, 0165).
Regarding claim 8, Fausti discloses The system of claim 7, wherein confirming that the set of background sound pressure levels at each of the plurality of octave-band center frequencies do not exceed the corresponding maximum sound pressure levels comprises sampling the set of background sound pressure levels at each of the plurality of octave-band center frequencies using the audiometer (paragraph 0131, 0138, 0140, 0165).
Regarding claim 9, Fausti discloses The system of claim 7, wherein the plurality of octave-band center frequencies are selected from the group consisting of 500 Hz, 1000 Hz, 2000 Hz, 4000 Hz, and 8000 Hz (paragraph 0129).
Regarding claim 10, Fausti discloses The system of claim 7, wherein the corresponding maximum sound pressure levels for the plurality of octave-band center frequencies are selected from the group consisting of 40 dB at 500 Hz, 40 dB at 1000 Hz, 47 dB at 2000 Hz, 57 dB at 4000 Hz, and 62 dB at 8000 Hz (paragraph 0057, 0138).
Regarding claim 11, Fausti discloses The system of claim 6, wherein determining comprises: in response to the calibration of the audiometer having not been validated at least once on the day in which the audiometric test is to be administered: sampling audio output of the headset at each a plurality of test tones generated by the tone generator; and determining that the audio output of the headset deviates from each of the plurality of test tones by no more than a threshold decibel level (paragraph 0069, 0076-0077).
Regarding claim 13, Fausti discloses The system of claim 11, wherein the threshold decibel level is 10 dB, and wherein the plurality of test tones have frequencies selected from the group consisting of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz, 6000 Hz, and 8000 Hz (paragraph 0129, 0142).
Regarding claim 14, Fausti discloses wherein conducting the audiometric test comprises: sending a first structured message from the mobile device to the audiometer instructing the audiometer to generate a tone at a predetermined frequency; receiving a second structured message at the mobile device from the audiometer indicating that the tone has been generated; determining at the mobile device whether the subject has indicated that the tone has been heard within a predetermined time interval; and repeating the steps of sending, receiving, and determining at each of a plurality of predetermined frequencies for each ear of the subject (paragraph 0057, 0142).
Regarding claim 15, Fausti discloses wherein the method further comprises progressively increasing a sound pressure level of a particular tone, in response to the subject failing to indicate that the particular tone has been heard within the predetermined time interval, until the subject has indicated that the tone has been heard within the predetermined time interval (paragraph 0142).
Regarding claim 16, Fausti discloses wherein the plurality of predetermined frequencies are selected from the group consisting of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz, 6000 Hz, and 8000 Hz, and wherein conducting the audiometric test comprises conducting the audiometric test using a Hughson-Westlake procedure (paragraph 0129).
Regarding claim 19, Fausti discloses The system of claim 1, wherein displaying the results of the audiometric test comprises generating an audiogram that includes, for each ear of the subject, a graph of hearing threshold levels of the subject for a set of frequencies (Fig 2a-6).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YASMEEN S WARSI whose telephone number is (571)272-9942. The examiner can normally be reached Monday-Friday 9 am to 5 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/YASMEEN S WARSI/Examiner, Art Unit 3791 /ALEX M VALVIS/Supervisory Patent Examiner, Art Unit 3791
Prosecution Insights