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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/12/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings were submitted on 08/27/2024. These drawings are reviewed and accepted by the examiner.
Allowable Subject Matter
Claims 33-44 would be allowable if the Double Patenting Rejection in this Office action is overcome.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claims 33 and 39, Dusan teaches:
“a plurality of microphones comprising a first microphone and a second microphone, wherein the first microphone is configured to be disposed at an entrance or within a user's ear canal to measure a first sound responsive to a user's speech” (col. 5, lines 33-55; ‘Also integrated within the housing of the headphone 2 is an inside microphone 6 and one or more outside microphones 4, 5.’); and
“wherein the second microphone is configured to be disposed proximate to a mouth of the user to measure a second sound responsive to the user's speech” (col. 5, lines 33-55; ‘Also integrated within the housing of the headphone 2 is an inside microphone 6 and one or more outside microphones 4, 5.’); and
“a hardware processor” (col. 7, lines 35-57; ‘The components shown may be implemented as a programmed data processor that performs the digital signal processing operations of a method, which may be described as follows.’) configured to:
“[[modify probabilities of phoneme predictions in a speech recognition algorithm based on]] a difference between an amplitude and a phase associated with the first sound and the second sound” (col. 10, lines 31-62; ‘Thus, in contrast to the first embodiment described above where the outside microphone signals are not used to produce a speech input feature of the speaker recognition algorithm 7, in the second embodiment the method generates a feature vector that contains the difference (delta) between logarithms of the powers in the inside and outside microphone signals, for example as the logarithm of the ratio of the power spectra of the user's speech as picked up by the inside microphone and by the outside microphone.’).
However, Dusan does not expressly teach:
“modify probabilities of phoneme predictions in a speech recognition algorithm based on a difference between an amplitude and a phase associated with the first sound and the second sound” (emphasis added); and
“selectively focus on one of the first or the second microphones based on the probabilities of the phoneme predictions.”
While there are prior art that calculate the differences of vectors, the prior art, whether taken alone or in combination, fails to teach, inter alia, “modify probabilities of phoneme predictions in a speech recognition algorithm based on a difference between an amplitude and a phase associated with the first sound and the second sound” together with “selectively focus on one of the first or the second microphones based on the probabilities of the phoneme predictions” in combination with the other claimed features.
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 33-44 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 22-28 of US 12106752 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because they both are directed to modifying probabilities of phoneme predictions.
Although the conflicting claims are not identical, they are not patentably distinct from each other because removing inherent and/or unnecessary limitations/step and rearranging the claims would be within the level of one of ordinary skill in the art. It is well settled that the omission of an element, e.g. “wherein said sensor is physically separate from the earbud and wherein said sensor is configured to be secured below a head and on a body of the user”, “enhance an accuracy of a speech recognition algorithm”, etc. (see claim 1 of US Patent) and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (CCPA 1963). Also note Ex parte Rainu, 168 USPQ 375 (Bd. App. 1969). Omission of a reference element or step whose function is not needed would be obvious to one of ordinary skill in the art.
Conclusion
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MARK . VILLENA
Examiner
Art Unit 2658
/MARK VILLENA/ Examiner, Art Unit 2658
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