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
1. 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.
2. Claims 1, 7, 9, 10-13, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1, 4-6, 14, 15, 17, and 18 of U.S. Patent No. 12,069,420. Although the claims at issue are not identical, they are not patentably distinct from each other because Claims 1, 7, 9, 10-13, and 17 of Patent Application No. 18803516 are anticipated by Claims 1, 4-6, 14, 15, 17, and 18 of U.S. Patent No. 12,069,420.
Patent Application No. 18803516
U.S. Patent No. 12,069,420
Claim 1. An open earphone comprising:
an acoustic driver configured to generate two sounds with opposite phases;
a housing configured to accommodate the acoustic driver, the housing being provided with two sound holes for outputting the two sounds with opposite phases respectively; and
a suspension structure configured to hold an end of the housing away from the suspension structure to abut against a wall of a concha cavity of a user, wherein
the housing defines a first cavity accommodating the acoustic driver,
the housing and the auricle define a second cavity, and
the two sound holes are respectively located inside and outside of the second cavity.
Claim 1. An open earphone comprising:
an acoustic driver for generating two sounds with opposite phases;
a housing for accommodating the acoustic driver, the housing being provided with two sound holes for outputting each of the two sounds with opposite phases; and
a suspension structure for fixing the housing in a position near an ear of a user without blocking an ear canal of the user, wherein
the housing includes a body and a baffle,
the body defines a first cavity accommodating the acoustic driver,
the baffle is connected to the body and extended in a direction of the ear canal of the user,
the baffle and an auricle of the user define a second cavity, and
the two sound holes are respectively located inside and outside of the second cavity, wherein
a ratio of a distance between a boundry of the baffle near the ear canal of the user and a sound hole located outside of the second cavity to a distance between the two sound holes is less than 1.78.
Claim 7. The open earphone of claim 5, wherein a ratio of sound volume of sound output from the sound hole located outside of the second cavity to sound volume of sound output from the sound hole located inside of the second cavity is in a range of 0.7-1.3.
Claim 5. The open earphone of claim 1, wherein a ratio of a sound volume of a sound output from a sound hole located outside of the second cavity to a sound volume of a sound output from a sound hole located inside the second cavity is in a range of 0.2-2.0.
Claim 9. The open earphone of claim 1, wherein an angle between a side of the housing towards a triangular fossa and a tangent line at a connection point between the suspension structure and the housing is in a range of 100°-150°.
Claim 17. The open earphone of claim 15, wherein an angle between a surface of the housing towards a triangular fossa and a tangent line between the suspension structure and a housing connection is in a range of 100°-150°.
Claim 10. The open earphone of claim 1, wherein a ratio of a distance between a gap between the housing and an ear canal opening and the sound hole located outside of the second cavity to a distance between the two sound holes is less than 1.78.
Claim 15. An open earphone comprising:
an acoustic driver for generating two sounds with opposite phases;
a housing for accommodating the acoustic driver, the housing being provided with two sound holes for outputting the two sounds with opposite phases respectively; and
a suspension structure for holding an end of the housing away from the suspension structure against an auricle of a user, wherein
the housing defines a first cavity accommodating the acoustic driver,
the housing and the auricle define a second cavity, and
the two sound holes are respectively located inside and outside of the second cavity, wherein
a ratio of a distance between a gap between the housing and an ear canal opening and a sound hole located outside of the second cavity to a distance between the two sound holes is less than 1.78.
Claim 11. The open earphone of claim 1, wherein a distance between a gap between the housing and an ear canal opening and the sound hole located outside of the second cavity is less than a distance between the two sound holes.
Claim 18. The open earphone of claim 15, wherein a distance between a gap between the housing and an ear canal opening and a sound hole located outside of the second cavity is less than a distance between the two sound holes.
Claim 12. The open earphone of claim 1, wherein a ratio of a volume of the second cavity to a reference volume is less than 1.75, the reference volume being a cube of a distance from a gap between the housing and an ear canal opening to the sound hole located outside of the second cavity.
Claim 4. The open earphone of claim 1, wherein a ratio of a volume of the second cavity to a reference volume is less than 1.75, the reference volume being a cube of a distance between a boundary of the baffle near the ear canal of the user and a sound hole located outside of the second cavity.
Claim 13. The open earphone of claim 1, further including an acoustic structure, the acoustic structure including a conduit disposed at one of the two sound holes.
Claim 6. The open earphone of claim 5, further including an acoustic structure, the acoustic structure being configured to adjust the ratio of the sound volume of the sound output from the sound hole located outside of the second cavity to the sound volume of the sound output from the sound hole located inside the second cavity, the acoustic structure including one of the following: a slit, a conduit, a cavity, a gauze, or a porous medium.
Claim 17. The open earphone of claim 1, wherein the housing at least partially covers an ear canal opening of the user.
Claim 14. The open earphone of claim 1, wherein the housing at least partially covers the ear canal of the user.
Claim Rejections - 35 USC § 102
3. 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.
4. Claim(s) 1, 2, 5, 9, 11, 13, and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Struzik (U.S. Pub. No. 2021/0067857 A1).
Regarding Claim 1, Struzik teaches an open earphone (open earphone, Figs. 1-9) comprising:
an acoustic driver (acoustic driver 172, Fig. 9A, Para. [0042]) configured to generate two sounds with opposite phases (acoustic driver 172 radiates front-side acoustic radiation into front acoustic cavity 174 and rear-side acoustic radiation into rear acoustic cavity 176, Fig. 9A, Para. [0042]; the sounds generated are out-of-phase [creating a dipole device], Paras. [0022], [0030], and [0044]);
a housing configured to accommodate the acoustic driver (housing 190, Figs. 9A, 9B, Para,. [0042]), the housing being provided with two sound holes for outputting the two sounds with opposite phases respectively (sound holes 180 and 186, Fig. 9A, Para. [0042]); and
a suspension structure configured to hold an end of the housing away from the suspension structure to abut against a wall of a concha cavity of a user (suspension structure 192 holds housing end 178 which is away from the suspension structure 192 and abut against a wall of a concha cavity of ear 200, Fig. 9B, Para. [0042]), wherein
the housing defines a first cavity accommodating the acoustic driver (housing (190, 178) defines a first cavity for accommodating driver 172, Fig. 9A),
the housing and the auricle define a second cavity (housing (190, 178) and the auricle define a second cavity, Fig. 9B), and
the two sound holes are respectively located inside and outside of the second cavity (sound hole 180 is shown to be located inside of the second cavity and hole 186 is shown to be located outside the second cavity, Figs. 9A and 9B).
Regarding Claim 2, Struzik teaches wherein the sound hole located inside of the second cavity is located on a side of the housing facing the ear canal (transmission line 178 is directed toward ear canal opening 202, and places opening 180 over or very close to the ear canal opening, Figs. 9A and 9B, Para. [0042]).
Regarding Claim 5, Struzik teaches wherein the sound hole located outside of the second cavity is located on a side of the housing toward a triangular fossa (second hole 186 is shown to be located on a side of housing 190 towards the triangular fossa of ear 200, Figs, 9A and 9B).
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Modified Fig. 9B
Regarding Claim 9, Struzik teaches wherein an angle between a side of the housing towards a triangular fossa and a tangent line at a connection point between the suspension structure and the housing is in a range of 100°-150° (as shown in Fig. 9B, the angle between housing 190, 178 towards a triangular fossa of ear 200 and the tangent line at the connection point between suspension structure 192 and the housing will be over 100°, Fig. 9B; see also modified Fig. 9B).
Regarding Claim 11, Struzik teaches wherein a distance between a gap between the housing and an ear canal opening and the sound hole located outside of the second cavity is less than a distance between the two sound holes (as shown in Figs. 9A and 9B, the gap between the housing (190, 178) and canal opening 202 and sound hole 180 and the sound hole 186 is less than a distance between sound holes 180 and 186; see also Para. [0042]).
Regarding Claim 13, Struzik teaches further including an acoustic structure, the acoustic structure including a conduit disposed at one of the two sound holes (opening 186 may not have a resistive element 188 or there may be multiple rear cavity openings/ports, Figs. 2, 4-7, and 10, Para. [0043]).
Regarding Claim 17, Struzik teaches wherein the housing at least partially covers an ear canal opening of the user (transmission line 178 is directed toward ear canal opening 202, and places opening 180 over or very close to the ear canal opening without blocking it, Fig. 9B, Para. [0042]).
Claim Rejections - 35 USC § 103
5. 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.
6. Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Struzik (U.S. Pub. No. 2021/0067857 A1) in view of Gu et al. (Chinese Pub. No. CN 201616895 U, hereinafter "Gu").
Regarding Claim 6, Struzik fails to explicitly teach further comprising another sound hole located outside of the second cavity, wherein the another sound hole is located on a side of the housing toward an earlobe.
However, Gu teaches further comprising another sound hole located outside of the second cavity, wherein the another sound hole is located on a side of the housing toward an earlobe (another sound hole 5 is shown on a side of the housing toward an earlobe, Fig. 1; see also Paras. [0021] and [0022]).It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the open earphone (as taught by Struzik) to include the sound hole on the housing toward an earlobe (as taught by Gu). Doing so enhances privacy of audio signal (Gu Para. [0022]).
7. Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Struzik (U.S. Pub. No. 2021/0067857 A1) in view of Wang et al. (Chinese Pub. No. CN 113556655 A, hereinafter "Wang").
Regarding Claim 7, Struzik fails to explicitly teach wherein a ratio of sound volume of sound output from the sound hole located outside of the second cavity to sound volume of sound output from the sound hole located inside of the second cavity is in a range of 0.7-1.3.
However, Wang teaches wherein a ratio of sound volume of sound output from the sound hole located outside of the second cavity to sound volume of sound output from the sound hole located inside of the second cavity is in a range of 0.7-1.3 (volume V1 of the front acoustic cavity and the volume V2 of the rear acoustic cavity satisfy the relationship: 0.42 ≤ V1/V2 ≤ 2.5, Abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the open earphone (as taught by Struzik) to include the sound volume ratio in the range of 0.7-1.3 (as taught by Wang). Doing so effectively improves sound leakage (Wang Abstract).
Allowable Subject Matter
Claims 3, 4, 8, 10, 12, 14-16, and 18-20 are 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.
Conclusion
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHIMEZIE E BEKEE whose telephone number is (571)272-0202. The examiner can normally be reached M-F 7.30-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen can be reached at 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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/CHIMEZIE EZERIWE BEKEE/Examiner, Art Unit 2691
/DUC NGUYEN/Supervisory Patent Examiner, Art Unit 2691
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