DETAILED ACTION
This action is in response to communications filed 7/8/2024:
Claims 1-8 are pending
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 § 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 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 8643359. Although the claims at issue are not identical, they are not patentably distinct from each other. For example:
Regarding claim 1, 8643359 teaches a method for evaluating or measuring distortion in an audio device wherein the audio device includes an input terminal and an output terminal (claim 5, method of measuring differential phase distortion and or induced frequency modulation of a signal from an audio amplifier via a modulated signal, wherein the audio amplifier includes an input and an output) comprising:
a test signal including a first modulated signal and a second modulated signal wherein the first modulated signal includes a first carrier signal and a first modulation signal and wherein the second modulated signal includes a second carrier signal and a second modulated signal (claim 5, combining a first signal and a second signal; coupling a first generator signal related to the modulated signal or a second generator signal related to the second signal; claim 6, wherein the modulated signal may include, an amplitude, phase, and or frequency modulated signal);
the test signal including a first frequency modulated signal wherein a first carrier signal is frequency modulated by a first modulation signal m1(t) (claim 5, combining a first signal and a second signal; coupling a first generator signal related to the modulated signal or a second generator signal related to the second signal; claim 6, wherein the modulated signal may include, an amplitude, phase, and or frequency modulated signal), and;
the test signal including a first amplitude modulated signal wherein a second carrier signal is amplitude modulated by a second modulation signal m2(t) (claim 5, combining a first signal and a second signal; coupling a first generator signal related to the modulated signal or a second generator signal related to the second signal; claim 6, wherein the modulated signal may include, an amplitude, phase, and or frequency modulated signal);
coupling the test signal to the input terminal of the audio device (claim 5, combining a first signal and a second signal and supplying the combined signals to the input of the audio amplifier);
coupling the output terminal of the audio device to an input terminal of a first demodulator (claim 5, coupling via a modifying circuit the output of the audio amplifier to an input of a FM demodulator, a Wow and Flutter meter, and or to a first input of a phase detector);
further comprising the first demodulator includes an output terminal (claim 5, providing from an output of the FM demodulator);
wherein the output terminal of the first demodulator demodulates the first modulated signal or the second modulated signal (claim 5, providing from an output of the FM demodulator or Wow and Flutter meter, a signal indicative of the induced frequency modulation of a signal from the output of the audio amplifier), and;
wherein the output terminal of the first demodulator is coupled to one or more distortion evaluating devices (claim 5, providing from an output of the phase detector a signal indicative of differential phase distortion that includes induced phase modulation of an amplified signal related to the first or second generator signal; and or providing from an output of the FM demodulator or Wow and Flutter meter, a signal indicative of the induced frequency modulation of a signal from the output of the audio amplifier).
The remaining independent and/or dependent claims are similarly rejected using one or more claims of the patent (whether alone or in combination).
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 8704533. See above as an example.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10012682. See above as an example.
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 1-8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) mathematical relationships and calculations with mental processes. This judicial exception is not integrated into a practical application because the claim is directed to an abstract idea (using mathematical relationships and calculations with mental processes to process a test signal wherein the test signal has been modulated using frequency modulation and amplitude modulation and evaluating said test signal for possible distortions) with additional generic computer elements (coupling an audio device with input/output terminal to a demodulator with an input/output terminal to one or more distortion evaluating devices (e.g. spectrum analyzer)) and the generically recited computer elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer/generic computer. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because transformation of a signal to be analyzed against a predetermined threshold/to be compared against another (to determine possible error/distortion) is well-known, routine, conventional computer functions (MPEP §2106.05(d)).
Claim 1 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes.
a test signal including a first modulated signal and a second modulated signal wherein the first modulated signal includes a first carrier signal and a first modulation signal and wherein the second modulated signal includes a second carrier signal and a second modulated signal – this step involves the well-known fact that modulating a signal involves the data signal along with a carrier frequency and the act of modulation is the use of mathematical relationships and calculations with mental processes.
the test signal including a first frequency modulated signal wherein a first carrier signal is frequency modulated by a first modulation signal m1(t) – this step involves the well-known fact that frequency modulating a signal involves the data signal along with varying a carrier wave’s frequency and the act of modulation is the use of mathematical relationships and calculations with mental processes.
the test signal including a first amplitude modulated signal wherein a second carrier signal is amplitude modulated by a second modulation signal m2(t) – this step involves the well-known fact that amplitude modulating a signal involves the data signal along with varying a carrier wave’s amplitude and the act of modulation is the use of mathematical relationships and calculations with mental processes.
wherein the output terminal of the first demodulator demodulates the first modulated signal or the second modulated signal – this step involves the use of mathematical relationships and calculations with mental processes to demodulate a modulated signal.
coupling the test signal to the input terminal of the audio device – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
coupling the output terminal of the audio device to an input terminal of a first demodulator – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
wherein the output terminal of the first demodulator is coupled to one or more distortion evaluating devices – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
The steps of “further comprising a second demodulator wherein the second demodulator includes an input terminal and an output terminal; coupling the input terminal of the second demodulator to the output terminal of the audio device; wherein the output terminal of the first demodulator or second demodulator is coupled to the one or more distortion evaluating devices including a spectrum analyzer, an FFT (Fast Fourier Transform), or time domain analyzer” are mere instructions to apply an exception. The reception of data from an output is also well-understood, routine, and conventional as the connection of data transfer points is a necessity among all generic computers.
Claim 2 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
further comprising a second demodulator wherein the second demodulator includes an input terminal and an output terminal - this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
coupling the input terminal of the second demodulator to the output terminal of the audio device - this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
wherein the output terminal of the first demodulator or second demodulator is coupled to the one or more distortion evaluating devices including a spectrum analyzer, an FFT (Fast Fourier Transform), or time domain analyzer - this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 3 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the audio device includes data compression - this step involves the use of a combination of well-known of mathematical relationships and calculations with mental processes and using a generic computer to achieve automation of manual processes (see MPEP 2106.05(a)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 4 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the first or second modulated signal includes any combination of amplitude modulation, phase modulation, and/or frequency modulation - this step involves the well-known fact that frequency, amplitude, or phase modulating a signal involves the data signal along with varying a carrier wave’s frequency, amplitude, or phase and the act of modulation is the use of mathematical relationships and calculations with mental processes.
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 5 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the test signal may include a composite signal – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 6 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the output terminal of the audio device is coupled to a circuit or system that measures amplitude, phase, and/or frequency in the frequency domain – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 7 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the output terminal of the audio device is coupled to a circuit or system that measures amplitude, phase, and/or frequency in the time domain – this step recites mere delivery of data from one output to another input on a generic computer (see MPEP 2106.05(f)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim 8 Analysis:
Step 1: YES: the claim is directed to a process.
Step 2A: YES: the claim is directed to an abstract idea involving the use of mathematical relationship and calculations with mental processes as recited in the parent claim.
wherein the audio device includes data compression - this step involves the use of a combination of well-known of mathematical relationships and calculations with mental processes and using a generic computer to achieve automation of manual processes (see MPEP 2106.05(a)).
Step 2B: NO: the claim does not recite additional elements that amount to significantly more than the judicial exception.
Claim Rejections - 35 USC § 112
Claims 1-8 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 the limitations “a first carrier signal” and “a first modulation signal”. However, the claim also recites “a test signal including a first modulated signal and a second modulated signal wherein the first modulated signal includes a first carrier signal and a first modulation signal and wherein the second modulated signal includes a second carrier signal and a second modulated signal”. It is unclear whether the second recitation of “a first carrier signal” and “a first modulation signal” is the same as the first recitation.
Claim 1 recites the limitations “a second carrier signal” and “a second modulation signal”. However, the claim also recites “a test signal including a first modulated signal and a second modulated signal wherein the first modulated signal includes a first carrier signal and a first modulation signal and wherein the second modulated signal includes a second carrier signal and a second modulated signal”. It is unclear whether the second recitation of “a second carrier signal” and “a second modulation signal” is the same as the first recitation.
Claim 2 recites “coupling the input terminal of the second demodulator to the output terminal of the audio device”. However, based on the recitation of “the audio device includes an input terminal and an output terminal” it is clear that the audio device has a single input terminal and a single output terminal. Claim 1 already recites that the output terminal of the audio device is coupled to the input terminal of the first demodulator thus rendering it impossible to connect another demodulator to the output of the audio device.
Claims 2-8 are dependent on indefinite parent claim 1 and thus also considered indefinite.
Claim Objections
Claim 1 is objected to because of the following informalities:
“wherein the output terminal of the first demodulator demodulates the first modulated signal or the second modulated signal, and;” should be changed to “wherein the output terminal of the first demodulator demodulates the first modulated signal or the second modulated signal; and”
Appropriate correction is required.
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.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hekimian (US4220914) in view of Yazurlo et al (US5915029, hereinafter “Yazurlo”).
Regarding claim 1, Hekimian teaches a method for evaluating or measuring distortion in an audio device wherein the audio device includes an input terminal and an output terminal (col 1 lines 6-9, method of measuring distortion) comprising:
a second modulated signal and wherein the second modulated signal includes a second carrier signal and a second modulated signal (Fig. 4, col 6 lines 38-48, a modulated signal comprising of amplitude modulated carrier signal);
the test signal including a first amplitude modulated signal wherein a second carrier signal is amplitude modulated by a second modulation signal m2(t) (Fig. 4, col 6 lines 38-48, a modulated signal comprising of amplitude modulated carrier signal);
coupling the test signal to the input terminal of the audio device (Fig. 4, test signal coupled to an input of the device under test (e.g. audio device));
coupling the output terminal of the audio device to an input terminal of a first demodulator (col 2 lines 25, amplitude demodulator);
further comprising the first demodulator includes an output terminal (Fig. 7, col 13 lines 38-41, mixers serve as demodulators and provide an output);
wherein the output terminal of the first demodulator demodulates the first modulated signal or the second modulated signal (col 2 lines 25, amplitude demodulator), and;
wherein the output terminal of the first demodulator is coupled to one or more distortion evaluating devices (Fig. 7, computation circuit 69 serves to determine distortion).
Hekimian fails to explicitly teach a test signal including a first modulated signal and wherein the first modulated signal includes a first carrier signal and a first modulation signal;
the test signal including a first frequency modulated signal wherein a first carrier signal is frequency modulated by a first modulation signal m1(t), and;
Yazurlo teaches a test signal including a first modulated signal and wherein the first modulated signal includes a first carrier signal and a first modulation signal (col 5 lines 23-25, generating a frequency modulated signal (modulated signal is a result of a data signal modified by a carrier signal));
the test signal including a first frequency modulated signal wherein a first carrier signal is frequency modulated by a first modulation signal m1(t) (col 5 lines 23-25, generating a frequency modulated signal (modulated signal is a result of a data signal modified by a carrier signal)), and;
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the testing methodologies (as taught by Hekimian) with the possible input signals (as taught by Yazurlo). The rationale to do so is to combine prior art elements according to known methods to yield the predictable result of evaluating for possible distortions when the input signal can be AM or FM signals (Yazurlo, col 1 lines 44).
Regarding claim 2, Hekimiain in view of Yazurlo teaches further comprising a second demodulator wherein the second demodulator includes an input terminal and an output terminal;
coupling the input terminal of the second demodulator to the output terminal of the audio device (Hekimian, Fig. 7, col 13 lines 38-41, mixers serve as demodulators and provide an output);
wherein the output terminal of the first demodulator or second demodulator is coupled to the one or more distortion evaluating devices including a spectrum analyzer, an FFT (Fast Fourier Transform), or time domain analyzer (Hekimian, col 4 lines 32-35, time domain representation).
Regarding claim 3, Hekimiain in view of Yazurlo teaches wherein the audio device includes data compression (Yazurlo, Fig. 1, DUT can be considered the CD and the CD comprises of compressed data).
Regarding claim 4, Hekimiain in view of Yazurlo teaches wherein the first or second modulated signal includes any combination of amplitude modulation, phase modulation, and/or frequency modulation (Hekimian, Fig. 4, col 6 lines 38-48, a modulated signal comprising of amplitude modulated carrier signal).
Regarding claim 5, Hekimiain in view of Yazurlo teaches wherein the test signal may include a composite signal (Yazurlo, Fig. 1, input signal can be from a CD which comprises of composite signals).
Regarding claim 6, Hekimiain in view of Yazurlo teaches wherein the output terminal of the audio device is coupled to a circuit or system that measures amplitude, phase, and/or frequency in the frequency domain (Hekimian, col 4 lines 32-35, time domain representation; one of ordinary skill in the art can apply a transform such as Fourier to transform from time domain to frequency domain).
Regarding claim 7, Hekimiain in view of Yazurlo teaches wherein the output terminal of the audio device is coupled to a circuit or system that measures amplitude, phase, and/or frequency in the time domain (Hekimian, col 4 lines 32-35, time domain representation).
Regarding claim 8, it is rejected similarly as claim 3.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to PTO-892, Notice of References Cited for a listing of analogous art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIN ZHU whose telephone number is (571)270-1304. The examiner can normally be reached Monday-Thursday 6AM-4PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen can be reached on 571-272-7503. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/QIN ZHU/Primary Examiner, Art Unit 2691