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 .
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,010,478. Although the conflicting claims are not identical, they are not patentably distinct from each other because claims 1-18 of U.S. Patent No. 12,010,478 are clearly anticipated or similar in scope to the rejected claims 1-20 of the U. S. Pat. App (No. 18/663,645) with only obvious wording variations. For example below:
Instant application
U.S. Patent No. 12,010,478
1. An open audio device comprising: an acoustic module configured to be located at least in part on a user's outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind the user's outer ear and containing a rechargeable battery; a bridge that couples the acoustic module to the housing; and wiring that runs from the rechargeable battery to the acoustic module.
1. An open audio device comprising: an acoustic module configured to be located at least in part on the outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal and a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind an outer ear of a user and in contact with at least one of the outer ear and the head proximate the intersection of the head and the outer ear; and a bridge that couples the acoustic module to the housing, wherein the bridge is constructed to have bending compliance, and wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.
2. The open audio device of claim 1, wherein the housing accommodates a cylindrical rechargeable battery.
3. The open audio device of claim 2, wherein the body further comprises wiring that runs from the rechargeable battery to the acoustic module.
2. The open audio device of claim 1, wherein the acoustic module includes a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn.
1. An open audio device comprising: an acoustic module configured to be located at least in part on the outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal and a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind an outer ear of a user and in contact with at least one of the outer ear and the head proximate the intersection of the head and the outer ear; and a bridge that couples the acoustic module to the housing, wherein the bridge is constructed to have bending compliance, and wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.
3. The open audio device of claim 2, wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.
1. An open audio device comprising: an acoustic module configured to be located at least in part on the outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal and a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind an outer ear of a user and in contact with at least one of the outer ear and the head proximate the intersection of the head and the outer ear; and a bridge that couples the acoustic module to the housing, wherein the bridge is constructed to have bending compliance, and wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.
4. The open audio device of claim 1, wherein the acoustic module carries at least one microphone.
4. The open audio device of claim 1, wherein the acoustic module carries at least one microphone.
5. The open audio device of claim 4, wherein the acoustic module defines at least one microphone opening that leads to the at least one microphone.
5. The open audio device of claim 4, wherein the acoustic module defines at least one microphone opening that leads to the at least one microphone.
6. The open audio device of claim 4, wherein the acoustic module carries at least two microphones.
6. The open audio device of claim 1, wherein the acoustic module carries at least two microphones.
7. The open audio device of claim 6, wherein the acoustic module defines at least two microphone openings that lead to the at least two microphones.
7. The open audio device of claim 6, wherein the acoustic module defines at least two microphone openings that leads to the at least two microphones.
8. The open audio device of claim 6, wherein an axis through the at least two microphone openings is within about +/- 30 degrees of the expected location of the user's mouth, when the open audio device is worn.
8. The open audio device of claim 7, wherein an axis through the at least two microphone openings is within about +/−30 degrees of the expected location of the user's mouth, when the open audio device is worn
9. The open audio device of claim 6, wherein the two or more microphones are arrayed to direct a beam towards the expected location of the user's mouth.
9. The open audio device of claim 7, wherein the two or more microphones are arrayed to direct a beam towards the expected location of the user's mouth.
10. The open audio device of claim 1, wherein the body is configured to contact the user's outer ear and/or a portion of the user's head that is just behind and abuts the user's outer ear, at two or more separate, spaced contact locations.
10. The open audio device of claim 1, wherein the body is configured to contact the user's outer ear and/or a portion of the user's head that is just behind and abuts the user's outer ear, at two or more separate, spaced contact locations.
11. The open audio device of claim 1, wherein the body is configured to contact at least one of the user's outer ear and the user's head proximate the intersection of the user's head and the user's outer ear.
1. An open audio device comprising: an acoustic module configured to be located at least in part on the outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal and a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind an outer ear of a user and in contact with at least one of the outer ear and the head proximate the intersection of the head and the outer ear; and a bridge that couples the acoustic module to the housing, wherein the bridge is constructed to have bending compliance, and wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.
12. The open audio device of claim 1, wherein the bridge is curved.
11. The open audio device of claim 1, wherein the bridge is curved.
13. The open audio device of claim 1, wherein the bridge is thinner than the housing.
12. The open audio device of claim 1, wherein the bridge is thinner than the housing.
14. The open audio device of claim 1, wherein the bridge is constructed to have bending compliance.
1. An open audio device comprising: an acoustic module configured to be located at least in part on the outer ear, wherein the acoustic module defines a first sound-emitting opening that is configured to be proximate but spaced from the user's ear canal and a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn; and a body supporting the acoustic module, the body comprising: a housing configured to be located behind an outer ear of a user and in contact with at least one of the outer ear and the head proximate the intersection of the head and the outer ear; and a bridge that couples the acoustic module to the housing, wherein the bridge is constructed to have bending compliance, and wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening
15. The open audio device of claim 14, wherein the bending compliance is about a longitudinal axis of the bridge.
13. The open audio device of claim 1, wherein the bending compliance is about a longitudinal axis of the bridge.
16. The open audio device of claim 14, wherein the bridge is formed, at least in part, of an elastomer that enables the bending compliance.
14. The open audio device of claim 1, wherein the bridge is formed, at least in part, of an elastomer that enables the compliance.
17. The open audio device of claim 14, wherein the bridge is configured such that it bends when it is pushed down over the user's outer ear.
15. The open audio device of claim 1, wherein the bridge is configured such that it bends when it is pushed down over the user's outer ear.
18. The open audio device of claim 14, wherein the bridge is constructed such that the bending compliance creates forces that help to hold the open audio device in place when it is worn.
16. The open audio device of claim 1, wherein the bridge is constructed such that the compliance creates forces that help to hold the open audio device in place when it is worn.
19. The open audio device of claim 14, wherein the bridge is constructed such that the bending compliance causes compressive force at opposed locations of the open audio device when it is worn.
17. The open audio device of claim 1, wherein the bridge is constructed such that the compliance causes compressive force at opposed locations of the open audio device when it is worn.
20. The open audio device of claim 1, wherein the acoustic module has an inner face that is configured to sit against one or more of a fossa, an anti-helix, a crus of helix, and a helix of the user's outer ear.
18. The open audio device of claim 1, wherein the acoustic module has an inner face that is configured to sit against one or more of a fossa, an anti-helix, a crus of helix, and a helix of the user's outer ear.
As shown in table above, the bold limitations in claims 1-20 of pending Application can be found the bold limitations in claims 1-18 as indicated above of U.S. Patent No. 12,010,478. Thus, one of ordinary skill in the art before the effective filing date of the claimed invention would recognize that they are not patentably distinct from each other. Accordingly, claims 1-20 of pending Application are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,010,478 for the reasons as stated above.
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.
Claim(s) 1, 2, 4, 5, 10-16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over the applicant’s cited reference US 8,111,854 (Peng) and in view of US 10,382,851 (Smith).
Regarding claim 1, Peng discloses an open audio device (fig. 8) comprising: an acoustic module (fig 8, tube 23) configured to be located at least in part on a user's outer ear (fig. 7, tube 23 is outside of the ear canal), wherein the acoustic module defines a first sound-emitting opening (figs. 7 and 8, opening in tube 23) that is configured to be proximate but spaced from the user's ear canal; and a body (fig 7, device 22, support 24) supporting the acoustic module, the body comprising: a housing configured to be located behind the user's outer ear (see fig. 7) and; a bridge that couples the acoustic module to the housing (Fig 8, Bridge shown by arrow).
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Peng does not explicitly disclose a housing configured to be located behind the user's outer ear containing a rechargeable battery and wiring that runs from the rechargeable battery to the acoustic module.
However, this claimed limitation is notorious old and well known.
For instance, in the related field of the invention, Smith teaches rechargeable battery placed in a hook of a hook device for an over the ear audio device (Fig 2, rechargeable battery 20, col. 3 lines 1-5) and wiring that runs from the rechargeable battery to the acoustic module (implicit: the battery will be directly or indirectly connected to all the electronic components of the device including the acoustic module).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claim 2, Peng also shows wherein the acoustic module includes a second sound-emitting opening that is configured to sit farther from the user's ear canal than the first sound-emitting opening when the device is worn (fig 8, the two sound openings which obviously be at different distances from the user are shown by the arrows below).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claims 4 and 5, Smith also teaches wherein the acoustic module carries at least one microphone and wherein the acoustic module defines at least one microphone opening that leads to the at least one microphone (col. 3 lines 17-21).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the microphone by Smith in Peng in order to provide a user with capability of two-way communication.
Regarding claim 10, Peng also shows wherein the body is configured to contact the user's outer ear and/or a portion of the user's head that is just behind and abuts the user's outer ear, at two or more separate, spaced contact locations (figs. 6, 8, as seen in the figures the hook and the unit 22 is contacting the user's outer ear and behind ear in multiple locations).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claim 11, Peng also teaches wherein the body is configured to contact at least one of the user's outer ear and the user's head proximate the intersection of the user's head and the user's outer ear (fig 8, Bridge shown by arrow).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claim 12, Peng also shows wherein the bridge is curved (see fig. 8, Bridge shown by arrow).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claim 13, Peng also shows wherein the bridge is thinner than the housing (Peng, Fig 8, the different thicknesses are shown by the arrows below).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claims 14-16, Peng also teaches wherein the bridge is constructed to have bending compliance; wherein the bending compliance is about a longitudinal axis of the bridge and wherein the bridge is formed, at least in part, of an elastomer that enables the bending compliance (see fig. 8, Bridge shown by arrow below; col. 7 lines 35-40).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Regarding claim 20, Peng also shows wherein the acoustic module has an inner face that is configured to sit against one or more of a fossa, an anti-helix, a crus of helix, and a helix of the user's outer ear (see fig. 7, shown by the arrow below).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the well-known rechargeable battery by Smith in Peng in order to provide the power for all electronic components.
Claim(s) 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over the applicant’s cited reference US 8,111,854 (Peng) and US 10,382,851 (Smith) and further in view of US 20200128335 (El Guindi).
Regarding claims 6-8, Peng and Smith does not explicitly disclose wherein the acoustic module carries at least two microphones; wherein the acoustic module defines at least two microphone openings that lead to the at least two microphones; wherein an axis through the at least two microphone openings is within about +/- 30 degrees of the expected location of the user's mouth, when the open audio device is worn.
However, these claimed limitations are notorious old and well known.
For instance, in the related field of the invention, El Guindi teaches an audio device placed in proximity of user's ear (Fig 1) which captures audio from the user as this is related to voice recognition of the user (Abstract) with two microphones (Abstract "hearing device (e.g., a HI) configured to detect own voice comprises two or more microphones ") which obviously will have microphone openings associated with each of them wherein an axis through the at least two microphone openings is within about +/- 30 degrees of the expected location of the user's mouth, when the open audio device is worn. (Abstract "wherein the hearing device is configured to determine the direction of arrival (DOA) of the voice detected by the microphones of the hearing device", Also, para. 0005 discloses "According to some embodiments, the DOA is between 0 and 30 degrees").
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use teaching by El Guindi in Peng and Smith in order to provide an effective voice recognition for the user with potential hearing impairment.
Regarding claim 9, El Guindi also teaches wherein the two or more microphones are arrayed to direct a beam towards the expected location of the user's mouth (fig. 1 DOA).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the teaching by El Guindi in Peng and Smith in order to provide an effective voice recognition for the user with potential hearing impairment.
Claim(s) 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over the applicant’s cited reference US 8,111,854 (Peng) and in view of US 10,382,851 (Smith) and further in view of US 6449374 (Skulley et al hereinafter Skulley).
Regarding claims 17-19, Peng and Smit does not explicitly disclose wherein the bridge is configured such that it bends when it is pushed down over the user's outer ear; wherein the bridge is constructed such that the bending compliance creates forces that help to hold the open audio device in place when it is worn and wherein the bridge is constructed such that the bending compliance causes compressive force at opposed locations of the open audio device when it is worn
However, these claimed limitations are notorious old and well known.
For instance, in the related field of the invention, Skulley teaches these claimed limitations (see fig. 1 E obviously the bending portion 12 will be bent if pushed down over the user's outer ear and the recoil would clamp the ear between the components of the creating opposite forces as shown by arrows 23, col. 5 lines 8-28).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to use the teaching by Skulley in Peng and Smith in order to allow the ear hook to be worn comfortably and securely for an ear of a user (Smith: col. 5 lines 19-21).
Allowable Subject Matter
Claim 3 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and if it overcomes the nonstatutory double patenting rejection above; because the prior art of record fails to teach the limitations of claim 3 “wherein the acoustic module comprises an audio driver and the first and second sound emitting-openings are configured to emit sound from opposite sides of the audio driver and such that the sounds emitted from the first sound-emitting opening are out of phase with sounds emitted from the second sound-emitting opening.“. Therefore, the prior art teachings neither anticipate nor render obvious the allowable subject matter in combination with the other claimed limitations.
Conclusion
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/TUAN D NGUYEN/Primary Examiner, Art Unit 2699